Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Proposed Rules 85137 

Colored Federal airway B–28 extends 

between the Prince Rupert, BC, Canada, 

NDB and the Sitka, AK, NDB, excluding 

the airspace within Canada. The 

decommissioning of the Sitka and 

Nichols NDBs would render B–28 

unusable. The FAA proposes to revoke 

B–28 in its entirety. The loss of B–28 is 

mitigated by existing Very High 

Frequency Omnidirectional Range 

(VOR) federal airways V–309 and V– 

311, which overlie B–28. 

The Proposal 

The FAA is proposing an amendment 

to 14 CFR part 71 to revoke Colored 

Federal airway B–28 in Alaska due to 

the pending decommissioning of its 

supporting Navigational Aids 

(NAVAID). 

Colored Federal airway B–28 extends 

between the Prince Rupert, BC, Canada, 

NDB and the Sitka, AK, NDB, excluding 

the airspace within Canada. The FAA 

proposes to revoke Colored Federal 

airway B–28 in its entirety. 

Regulatory Notices and Analyses 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore: (1) is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under Department of 

Transportation (DOT) Regulatory 

Policies and Procedures (44 FR 11034; 

February 26, 1979); and (3) does not 

warrant preparation of a regulatory 

evaluation as the anticipated impact is 

so minimal. Since this is a routine 

matter that will only affect air traffic 

procedures and air navigation, it is 

certified that this proposed rule, when 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities under the 

criteria of the Regulatory Flexibility Act. 

Environmental Review 

This proposal will be subject to an 

environmental analysis in accordance 

with FAA Order 1050.1F, 

‘‘Environmental Impacts: Policies and 

Procedures’’ prior to any FAA final 

regulatory action. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g); 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order JO 7400.11H, 

Airspace Designations and Reporting 

Points, dated August 11, 2023, and 

effective September 15, 2023, is 

amended as follows: 

Paragraph 6009(d) Colored Federal 

airways. 

* * * * * 

B–28 [Remove] 

* * * * * 

Issued in Washington, DC, on November 

30, 2023. 

Karen Chiodini, 

Acting Manager, Rules and Regulations 

Group. 

[FR Doc. 2023–26709 Filed 12–6–23; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 120 

[Docket No. FAA–2012–1058; Notice No. 24– 

05] 

RIN 2120–AK09 

Drug and Alcohol Testing of 

Certificated Repair Station Employees 

Located Outside of the United States 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This notice of proposed 

rulemaking (NPRM) would require 

certificated repair stations located 

outside the territory of the United States 

whose employees perform safetysensitive maintenance functions on 

certain air carrier aircraft to obtain and 

implement a drug and alcohol testing 

program in accordance with the 

requirements of the Drug and Alcohol 

Testing Program published by the FAA 

and the Procedures for Transportation 

Workplace Drug Testing Programs 

published by the Department of 

Transportation. 

DATES: Send comments on or before 

February 5, 2024. 

ADDRESSES: Send comments identified 

by docket number FAA–2012–1058 

using any of the following methods: 

• Federal eRulemaking Portal: Go to 

https://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation (DOT), 1200 New Jersey 

Avenue SE, Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Take 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue SE, Washington, DC, between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

Docket: Background documents or 

comments received may be read at 

https://www.regulations.gov at any time. 

Follow the online instructions for 

accessing the docket or go to the Docket 

Operations in Room W12–140 of the 

West Building Ground Floor at 1200 

New Jersey Avenue SE, Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nancy Rodriguez-Brown, Office of 

Aerospace Medicine, Drug Abatement 

Division, Federal Aviation 

Administration, 800 Independence 

Avenue SW, Washington, DC 20591; 

telephone (202) 267–8442; email: 

drugabatement@faa.gov. 

SUPPLEMENTARY INFORMATION: 

List of Abbreviations and Acronyms 

Frequently Used in This Document 

BASA—Bilateral Aviation Safety Agreement 

ICAO—International Civil Aviation 

Organization 

Table of Contents 

I. Overview of Proposed Rule 

II. Authority for This Rulemaking 

III. Background 

A. History 

B. Legislative and Rulemaking Actions 

1. FAA Modernization and Reform Act of 

2012 

2. Advance Notice of Proposed Rulemaking 

and Comment Response 

3. FAA Extension, Safety, and Security Act 

of 2016 

IV. Discussion of the Proposal 

A. Application of 14 CFR Part 120 and 49 

CFR Parts 40 Through 145 Certificated 

Repair Stations Located Outside the 

Territory of the United States (§§ 120.1, 

120.123, and 120.227) 

B. Conforming Amendments To Facilitate 

Drug and Alcohol Procedures Outside 


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85138 Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Proposed Rules 

1These estimates are current as of April 2021 and 

sourced from the National Vital Information 

Subsystem (NVIS). NVIS is a subsystem of the 

Flight Standards Automation System, a 

comprehensive information system used primarily 

by inspectors to record and disseminate data 

associated with inspector activity and aviation 

environment. While there are more current 

estimates (as of March 2023, the rule would affect 

approximately 962 part 145 repair stations in about 

66 foreign countries), the 2021 numbers are used in 

the regulatory evaluation and Regulatory Impact 

Assessment to estimate cost. 

2 14 CFR 120.1(b), 120.105(e), 120.215(a)(5). 

3A covered employee is defined in § 120.7(e) as 

an individual who performs, either directly or by 

contract, a safety-sensitive function listed in 

§§ 120.105 and 120.215 for an employer (as defined 

in § 120.7(g)). 

4 Interim Final Rule, Procedures for 

Transportation Workplace Drug Testing Programs, 

53 FR 47002 (Nov. 21, 1988). 

5Final Rule, Anti-Drug Program for Personnel 

Engaged in Specified Aviation Activities, 53 FR 

47024 (Nov. 21, 1988). 

the United States (§§ 120.123 and 

120.227) 

C. Exemptions and Waivers to Drug and 

Alcohol Program Requirements (§§ 120.5 

and 120.9) 

D. Impact on International Agreements 

V. Regulatory Notices and Analyses 

A. Regulatory Evaluation 

B. Regulatory Flexibility Determination 

C. International Trade Impact Assessment 

D. Unfunded Mandates Assessment 

E. Paperwork Reduction Act 

F. International Compatibility 

G. Environmental Analysis 

VI. Executive Order Determinations 

A. Executive Order 13132, Federalism 

B. Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

C. Executive Order 13609, Promoting 

International Regulatory Cooperation 

VII. Additional Information 

A. Comments Invited 

B. Confidential Business Information 

C. Electronic Access and Filing 

I. Overview of Proposed Rule 

This proposed rule, which the FAA is 

required by statute to promulgate, 

would implement a statutory mandate 

to require certificated part 145 repair 

stations located outside the territory of 

the United States (U.S.) to ensure that 

employees who perform safety-sensitive 

maintenance functions on part 121 air 

carrier aircraft are subject to a drug and 

alcohol testing program, consistent with 

the applicable laws of the country in 

which the repair station is located. This 

proposed rule would require a part 145 

repair station located outside the 

territory of the U.S. to implement a drug 

and alcohol testing program meeting the 

requirements of 49 CFR part 40 and 14 

CFR part 120, which must cover its 

employees who perform maintenance 

functions on part 121 air carrier aircraft. 

If a part 145 repair station cannot meet 

one or all requirements in 49 CFR part 

40 (e.g., the laws of the country where 

the repair station is located are 

inconsistent with the regulations), the 

part 145 repair station may apply for an 

exemption using the process described 

in 49 CFR 40.7. Similarly, if a part 145 

repair station cannot meet one or all 

requirements in 14 CFR part 120, it may 

apply for a waiver in accordance with 

proposed waiver authority. This 

rulemaking would affect approximately 

977 part 145 repair stations in about 65 

foreign countries.1

It is the responsibility of the employer 

(e.g., the part 121 operator) to ensure 

that any person who performs safetysensitive functions (e.g., maintenance or 

preventive maintenance), directly or by 

contract (including by subcontract at 

any tier), is subject to drug and alcohol 

testing. The FAA notes that part 145 

repair stations located within the 

territory of the U.S. may elect to, but are 

not required to, implement a drug and 

alcohol testing program under 14 CFR 

part 120. When hiring by contract, if a 

part 145 domestic repair station does 

not have a testing program of its own, 

the part 121 operator must cover the 

repair station’s safety-sensitive 

employees under its FAA drug and 

alcohol testing program.2 In this 

scenario, for purposes of drug and 

alcohol testing, the part 121 operator 

hires the repair station employees as 

covered employees 3 and must apply all 

the regulatory requirements of the 

program to these employees (e.g., 

conduct a pre-employment drug test, the 

records check, the training and 

educational information distribution 

requirements, and include the 

individuals in the random testing pool). 

Therefore, all employees performing a 

safety-sensitive function within the U.S. 

are part of a drug and alcohol testing 

program, whether it is the part 121 

operator’s program or the repair 

station’s program. As further discussed 

in this preamble, the FAA does not 

propose any changes to its current drug 

and alcohol testing requirements 

applicable to employees performing a 

safety-sensitive function within the U.S. 

as part of this rulemaking. In addition, 

the FAA invites comments, with 

supporting data, on whether the drug 

and alcohol testing requirements in this 

proposed rule should be extended to 

safety sensitive maintenance employees 

of part 121 certificate holders located 

outside the United States. 

II. Authority for This Rulemaking 

The FAA’s authority to issue rules on 

aviation safety is in title 49 of the 

United States Code (49 U.S.C.). Subtitle 

I, section 106 describes the authority of 

the FAA Administrator. Subtitle VII, 

Aviation Programs, describes in more 

detail the scope of the agency’s 

authority. The FAA’s authority to issue 

rules on alcohol and drug testing is in 

49 U.S.C. 45102, which directs the 

Administrator to prescribe regulations 

that establish a program requiring air 

carriers and foreign air carriers to 

conduct certain alcohol and controlled 

substances testing. 

This proposed rule is further 

promulgated under section 308 of the 

FAA Modernization and Reform Act of 

2012 (the Act), 49 U.S.C. 44733. 

Specifically, 49 U.S.C. 44733(d)(2), 

titled ‘‘Alcohol and Controlled 

Substances Testing Program 

Requirements,’’ requires the FAA to 

‘‘promulgate a proposed rule requiring 

that all part 145 repair station 

employees responsible for safetysensitive maintenance functions on part 

121 air carrier aircraft [be] subject to an 

alcohol and controlled substances 

testing program determined acceptable 

by the [FAA] Administrator and 

consistent with the applicable laws of 

the country in which the repair station 

is located.’’ Additionally, this proposed 

rule is promulgated under section 2112 

of the FAA Extension, Safety, and 

Security Act of 2016, (the 2016 Act), 

which directed publication of a notice 

of proposed rulemaking in accordance 

with 49 U.S.C. 44733. The 2016 Act also 

requires that the notice of proposed 

rulemaking be finalized. 

III. Background 

A. History 

The FAA and the Office of the 

Secretary of Transportation (OST) have 

long engaged in a regulatory partnership 

regarding drug and alcohol testing of 

persons in the aviation industry. The 

OST first published its drug testing 

procedure regulations in 1988 to require 

antidrug programs for certain 

transportation industries, including 

aviation.4 In that interim final rule, the 

OST adopted a modification of 

Department of Health and Human 

Services (HHS) guidance in new 49 CFR 

part 40 to require employers to conduct 

drug testing in accordance with the 

HHS’s Mandatory Guidelines for 

Federal Workplace Programs. 

Simultaneously, the FAA published a 

final rule setting forth regulations to 

certain entities to implement an antidrug program for employees who 

perform sensitive safety or security 

related functions.5 These entities 

included: domestic and supplemental 

air carriers, commercial operators of 

large aircraft, air taxi and commuter 


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6 14 CFR 91.11 (1986). 

7See Final Rule—Request for Comments, AntiDrug Program for Personnel Engaged in Specified 

Aviation Activities; 54 FR 15148 (Apr. 14, 1989); 

Final Rule—Extension of Compliance Date, AntiDrug Program for Personnel Engaged in Specified 

Aviation Activities, 54 FR 53282 (Dec. 27, 1989), 

Final Rule—Extension of Compliance Date, AntiDrug Program for Personnel Engaged in Specified 

Aviation Activities, 56 FR 18978 (Apr. 24, 1991), 

Final Rule—Extension of Compliance Date, AntiDrug Program for Personnel Engaged in Specified 

Aviation Activities, 57 FR 31275 (Jul. 14, 1992). 

8 105 Stat. 917, Public Law 102–143 (Oct. 28, 

1991). 

9 DOT Final Rule, Procedures for Transportation 

Workplace Drug and Alcohol Testing Programs, 59 

FR 7340 (Feb. 15, 1994). FAA Final Rule, Antidrug 

Program for Personnel Engaged in Specific Aviation 

Activities, 59 FR 42922 (Aug. 19, 1994). 

10Notice of Proposed Rulemaking, Alcohol 

Misuse Prevention Program for Personnel Engaged 

in Specified Aviation Activities, 57 FR 59458 (Dec. 

15, 1992). 

11Final Rule, Alcohol Misuse Prevention Program 

for Personnel Engaged in Specified Aviation 

Activities, 59 FR 7380 (Feb. 15, 1994). 

12For example, in 1994, the FAA proposed to 

require foreign air carriers operating in the U.S. to 

implement the same testing required of domestic 

U.S. air carriers unless multilateral action was taken 

by ICAO to support international standards (59 FR 

7420). However, in 1995, ICAO published the 

Manual on Prevention of Problematic Use of 

Psychoactive Substances in the Aviation 

Workplace, and the FAA subsequently withdrew 

this proposed rule in 2000 (65 FR 2079). 

13At that time, requirements for affected 

certificated airmen were located in parts 61, 63, 65, 

and 67. Requirements for affected air carriers and 

operators were located in parts 91, 121, and 135. 

Requirements for affected air traffic control 

facilities and air traffic controllers were located in 

subpart B of part 65. Requirements for repair 

stations certificated under part 145 and contractors 

who elected to have drug and alcohol testing 

programs were located in appendices I and J of part 

121. 

14Final Rule, Drug and Alcohol Testing Program, 

74 FR 22649 (May 14, 2009). Certain inadvertent 

errors were corrected in a subsequent final rule: 

Correction, Drug and Alcohol Testing Program, 75 

FR 3153 (Jan. 20, 2010). 

15Final Rule, Conforming Amendments and 

Technical Corrections to Department Rules 

Implementing the Transportation Drug Testing 

Program). 

16Public Law 112–95 (Feb. 14, 2012). 

operators, certain commercial operators, 

certain contractors to these operators, 

and air traffic control facilities not 

operated by the FAA or the U.S. 

military. Before this final rule, the 

FAA’s regulatory action pertaining to 

drug and alcohol use primarily focused 

not on testing programs, but on 

restrictions on commercial aviation 

personnel (e.g., regulations restricting 

crewmembers such as pilots, flight 

attendants, flight engineers, and flight 

navigators from acting as a crewmember 

within eight hours after drinking an 

alcoholic beverage, regulations 

restricting use of any drug that affects 

faculties contrary to safety 6). The final 

rule required employers to comply with 

the OST’s newly adopted 49 CFR part 

40, Procedures for Transportation 

Workplace Drug Testing Programs (i.e., 

comply with the modified HHS 

guidance). However, rather than 

following the OST structure, which 

created a new part to promulgate the 

regulations, the FAA adopted a new 

appendix within 14 CFR part 121 and 

required compliance through various 

cross-references in 14 CFR parts 61, 63, 

65, and 135. 

The 1988 FAA final rule applied only 

to domestic U.S. operators but did not 

expressly exclude employees located 

outside the territory of the U.S. from 

testing. In that final rule, the FAA 

considered the impact that the 

regulations would have on foreign laws 

and policy. Specific to foreign repair 

stations, individuals at foreign repair 

stations under contract to U.S. 

certificate holders would not be able to 

perform maintenance or preventive 

maintenance work on U.S.-registered 

aircraft unless they participated in an 

anti-drug program. However, as set forth 

by then-part 121, appendix I, section 

XII, the rule would not be applicable in 

any situation where compliance would 

violate the domestic laws or policies of 

another country. Additionally, the 

section provided a longer effectivity 

date to aid the Department of 

Transportation (DOT) and foreign 

governments in reaching permanent 

resolutions to any identified conflict 

between the final rule and foreign law. 

The effectivity date for the final rule 

with respect to employees located 

outside the territory of the U.S. was 

extended several times,7 during which 

time Congress passed the Omnibus 

Transportation Employee Testing Act of 

1991 (OTETA).8 Section 3 of OTETA 

added sec. 614 to title VI of the Federal 

Aviation Act of 1958, which directed 

the Administrator to prescribe 

regulations to establish a program that 

requires both air carriers and foreign air 

carriers to conduct alcohol and 

controlled substance testing for certain 

persons. OTETA specified that the FAA 

should only establish requirements 

applicable to foreign air carriers 

consistent with the international 

obligations of the U.S. and take any laws 

and regulations of the foreign countries 

into account. 

Again, the OST and the FAA issued 

congruent final rules 9 to implement the 

legislation, as applicable. Consistent 

with the legislation, the FAA final rule 

mandated that no employee located 

solely outside the territory of the U.S. 

shall be tested for illegal use of drugs 

under appendix I of part 121. An 

employer was required to remove such 

employees from the random testing pool 

while the employee solely performed 

functions in a foreign country, or while 

under contract outside the territory of 

the U.S. Concurrently, the FAA 

proposed and adopted appendix J 

within part 121 to supplement the 

existing regulations concerning alcohol 

misuse to ensure coordination between 

OST and FAA. The FAA had originally 

proposed 10 that the alcohol testing rule 

would apply to direct employees of U.S. 

air carriers who performed safetysensitive functions outside the U.S., 

subject to the laws and regulations of 

the country in which the testing would 

occur; however, in response to 

comments, the FAA ultimately decided 

not to require alcohol testing of any 

employees located outside the territory 

of the U.S., mirroring the drug testing 

requirements.11

These drug and alcohol testing 

regulations remained static for almost 

two decades, despite occasional 

proposed rulemaking that did not come 

to fruition.12 These regulations were 

scattered throughout 14 CFR.13 Most 

recently, in 2009, the FAA concluded 

that it would be best to streamline and 

clarify title 14 to pull the regulations 

existing at that time into one location. 

Therefore, FAA adopted new part 120 14

to set forth a better organizational 

structure for the drug and alcohol 

testing program regulations, which is 

where it is situated today. The FAA has 

engaged in additional rulemaking since 

that time to harmonize 14 CFR part 120 

with OST’s amendments to 49 CFR part 

40, as warranted (e.g., aligning 

prohibited drugs in 14 CFR part 120 

with those in 49 CFR part 40 15). 

B. Legislative and Rulemaking Actions 

1. FAA Modernization and Reform Act 

of 2012 

In 2012, Congress passed the FAA 

Modernization and Reform Act of 

2012.16 Section 308(d)(2) of the Act, 

implemented in 49 U.S.C. 44733, 

requires that the FAA Administrator 

publish a proposed rule requiring that 

all part 145 repair station employees 

responsible for safety-sensitive 

maintenance functions on part 121 air 

carrier aircraft outside the U.S. to be 

subject to an alcohol and controlled 

substances testing program determined 

acceptable by the Administrator and 

consistent with the applicable laws of 

the country in which the repair station 

is located. The FAA considers all 

maintenance functions performed on 

part 121 air carrier aircraft to be safetysensitive under 14 CFR 120.105 and 

120.215. 


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17Advanced Notice of Proposed Rulemaking, 

Drug and Alcohol Testing of Certain Maintenance 

Provider Employees Located Outside of the United 

States, 79 FR 14621 (Mar. 17, 2014). 

18ANPRM—Extension of Comment Period, Drug 

and Alcohol Testing of Certain Maintenance 

Provider Employees Located Outside of the United 

States; Extension of Comment Period, 79 FR 24631 

(May 1, 2014). 

19Section 43.17 sets forth requirements for 

maintenance and preventative maintenance 

performed on U.S. aeronautical products by persons 

who hold valid Transport Canada Civil Aviation 

Maintenance Engineer licenses and Transport 

Canada Civil Aviation Approved Maintenance 

Organizations. 

20The FAA notes that as of the publication of the 

ANPRM, there were (and continue to be) a number 

of ICAO standards and recommended practices that 

address misuse of drugs and alcohol by aviation 

personnel; however, ICAO did not, and does not, 

require ICAO Member States to establish testing 

program to deter or detect inappropriate drug and 

alcohol use by aviation personnel with safetysensitive responsibilities. 

2. Advance Notice of Proposed 

Rulemaking and Comment Response 

In response to the congressional 

mandate, the FAA published an 

advanced notice of proposed 

rulemaking (ANPRM) on March 17, 

2014.17 The comment period for the 

ANPRM closed July 17, 2014. The FAA 

received 74 substantive comments of 

both support and opposition. 

The FAA recognized that foreign 

countries and maintenance providers 

would have many concerns regarding 

drug and alcohol testing of certain 

maintenance personnel outside the 

territory of the U.S. Therefore, the FAA 

chose to issue an ANPRM to seek 

comments from the public and 

interested governments to help inform 

the development of a proposed rule. 

Specifically, the FAA recognized and 

inquired about the associated legal, 

practical, and cultural issues related to 

drug and alcohol testing. Additionally, 

the FAA asked various questions 

pertaining to foreign countries’ laws and 

regulations, program elements of 

acceptable drug and alcohol testing, 

existing drug and alcohol testing 

program in other countries, and the 

scope of a proposed rule to include 

persons performing safety sensitive 

maintenance functions on aircraft 

operated by part 121 air carriers in 

accordance with part 43. The comment 

period for the ANPRM, originally set for 

60 days, was extended an additional 60 

days 18 to allow time for commenters to 

analyze the ANPRM and prepare 

comments. Few comments provided 

specific information on the laws, 

cultural practices, and existence of drug 

and alcohol testing programs in foreign 

countries and instead presented general 

arguments in support and opposition. 

The FAA received 74 comments: 40 

generally supported the ANPRM; 29 

generally opposed the ANPRM; and five 

stated no position. The 40 commenters 

who generally supported the proposal 

include 33 individuals, including 

certificated airmen (e.g., mechanics, 

flight instructors) and members of the 

flying public; three airline mechanics’ 

unions; two aviation consulting firms; a 

consumer advocacy group; and an 

aircraft manufacturer. These 

commenters generally believed that 

maintenance personnel both within the 

U.S. and abroad should be treated the 

same with respect to drug and alcohol 

testing. 

Supporters additionally proposed that 

the FAA expand the rule beyond the 

scope of the statutory mandate to (1) 

make existing domestic regulations and 

those that would be extended 

internationally more stringent, and (2) 

include part 135 operators, part 91 

operators, and fractional ownership 

operators (under part 91, subpart K) that 

use part 145 repair station employees 

outside the territory of the U.S. in the 

testing requirements. These commenters 

also recommended expanding the 

testing requirement to employees of 

non-certificated repair stations outside 

the territory of the U.S., such as 

authorized persons who perform 

maintenance functions on aircraft 

operated by part 121 air carriers in 

accordance with 14 CFR 43.17.19 These 

supporters include the Teamsters 

Aviation Mechanic Coalition, Aircraft 

Mechanics Fraternal Association, and 

the Transportation Trades Department 

labor unions, who stated an expansion 

in scope would help improve the safety 

of maintenance functions that are 

outsourced to repair stations outside the 

territory of the U.S. Some commenters 

asserted that U.S.-based maintenance 

facilities are operating at an economic 

disadvantage as maintenance facilities 

abroad are not required to subject 

employees to drug and alcohol testing 

and, therefore, are essentially 

circumventing the associated costs to 

maintain a testing program. 

Outside of the five commenters that 

did not state an overt position on the 

proposal, the remaining comments were 

from nine foreign repair stations, four 

foreign governmental aviation 

organizations, four trade associations, 

four foreign trade associations, three 

airline manufacturers, three foreign 

airlines, one foreign aviation industry 

coalition, and one foreign government 

representative. These twenty-nine 

commenters generally opposed the 

ANPRM stating that the FAA threatens 

to overreach its authority and the 

proposal fails to recognize national 

sovereignty, existing Bilateral Aviation 

Safety Agreements (BASAs), the impact 

of ICAO initiatives,20 and the economic 

impact to the aviation industry. The 

FAA responds to the comments in the 

subsequent sections. 

National Sovereignty 

More than half of the opposing 

commenters cited failure to recognize 

each nation’s sovereignty, stating that 

the FAA cannot impose regulations on 

persons outside the territory of the U.S. 

where those regulations conflict with 

the laws of sovereign nations. The 

Coalition of Industry Groups, which 

includes members from Aeronautical 

Repair Station Association (ARSA), 

Airlines for America (A4A), Regional 

Airline Association (RAA), International 

Air Transport Association (IATA), and 

other associations, supported requiring 

drug and alcohol testing programs 

outside the territory of the U.S. 

However, these aviation associations 

also emphasized that many countries 

have laws protecting the right to privacy 

in employment, as well as labor and 

data security laws, that could conflict 

with the proposed rule. These 

associations and commenters strongly 

suggested the FAA respect national 

sovereignty and ensure the proposal is 

consistent with applicable laws of the 

country in which the repair station is 

located. Commenters asserted that the 

FAA must not move forward with a 

proposal that would be applied without 

respect to national sovereignty. 

FAA Response 

In evaluating the international 

implications of requiring part 145 repair 

stations outside of the United States to 

implement drug and alcohol testing 

programs that comply with U.S. 

domestic testing standards throughout 

the global community, the FAA has 

become aware of the difficulties 

associated with the establishment of 

such programs. Specifically, any 

regulation that requires 14 CFR part 145 

repair stations located outside the 

territory of the U.S. to implement drug 

or alcohol testing programs without 

respect to national sovereignty may be 

contrary to international law and might 

exceed generally recognized limits to 

extraterritorial jurisdiction. Further, 

section 308 of the FAA Modernization 

and Reform Act of 2012 directs that the 

proposed rule be ‘‘consistent with the 

applicable laws of the country in which 

the repair station is located.’’ Given 

these considerations, should the 

application of 49 CFR part 40 and 14 

CFR part 120 wholly or in part be 

inconsistent with a country’s laws or 


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21 In light of the withdrawal of the UK from the 

EU on January 31, 2020, the UK is no longer part 

of the EU/U.S. BASA. Consultations between the 

U.S. and UK are now governed by Article IV of the 

1995 UK/U.S. BASA. 

regulations, the 14 CFR part 145 repair 

station could apply for an exemption 

from 49 CFR part 40 using the process 

described in 49 CFR 40.7. Additionally, 

the repair station could request a waiver 

from 14 CFR part 120 following the 

instructions proposed in new § 120.9. 

As further discussed in section IV.C. of 

this preamble, the FAA has proposed 

language in 14 CFR 120.5 to clarify that 

the FAA will recognize any 49 CFR part 

40 exemptions issued to an employer as 

meeting the procedures set forth in 

accordance with that part. 

Bilateral Aviation Safety Agreements 

Most of the same commenters 

opposing unilateral application of drug 

and alcohol testing regulations pointed 

to the BASAs the U.S. is party to, (e.g., 

Switzerland, Canada, and the European 

Union). Commenters detailed that these 

BASAs include separate detailed 

agreements on mutual cooperation and 

technical assistance in the evaluation 

and acceptance of each country’s 

approved maintenance organization 

systems (i.e., Maintenance 

Implementation Procedures 

agreements). The International Air 

Transport Association (IATA) 

commented that BASAs contribute to 

growth in aviation services by 

dramatically reducing regulatory 

compliance costs, making government 

oversight more efficient, and helping 

aerospace interests grow and compete 

globally. IATA recommended that the 

FAA focus on working with 

governments that impose equivalent, 

not duplicate, measures in its efforts to 

apply requirements for drug and alcohol 

testing programs outside the territory of 

the U.S. 

Additional commenters asserted that 

BASAs contain provisions requiring 

consultation before unilateral 

rulemaking, which has not yet 

happened in relation to this proposal. 

The commenters expressed that the 

FAA is obligated to ensure that current 

international agreements are honored, 

which would include such consultation. 

Comments from the UK Department for 

Transport, International Aviation Safety 

and Environment Division specifically 

stated that it is important for the FAA 

to consider consultations under Article 

17 of the EU/U.S. BASA.21

FAA Response 

The FAA has been directed by 

Congress to promulgate regulations 

requiring part 145 repair stations 

outside the U.S. to have a drug and 

alcohol testing program for their 

employees who perform work on part 

121 aircraft. To the extent that BASA 

provisions concerning notice and 

consultation are applicable to the 

proposed regulations, the FAA intends 

to follow those provisions. Commenters 

have not identified any specific BASAs 

that are in conflict with the statutory 

requirements this proposed rule would 

implement, nor is FAA aware of any at 

this time. The FAA invites comments as 

to whether there are any BASAs that 

would conflict with the requirements of 

this proposed rule. Additional 

discussion regarding the FAA’s 

international obligations may be found 

in section IV.D. of this preamble. 

Safety Case 

Commenters also raised concerns 

regarding the lack of supporting 

evidence indicating that a safety case 

exists to justify the proposed rule. 

Commenters noted that there have been 

no documented aviation accidents in 

the U.S., the European Union, or Hong 

Kong in which drug use and/or alcohol 

misuse has been a direct cause or 

contributing factor. The Federal Office 

of Civil Aviation (FOCA)—Swiss 

Confederation stated that it has found 

no data that would support the 

existence of a safety case, and 

Switzerland and other European 

Aviation Safety Agency (EASA) Member 

States have safety management 

provisions in place for maintenance 

stations and a verifiable track record 

demonstrating that drug use and/or 

alcohol misuse does not currently 

represent a safety concern requiring 

further regulatory action. Commenters 

noted that according to the ICAO 

Accident Data Reporting system, 

between 1970 and 2012, there were no 

occurrence reports of drug or alcohol 

intake at maintenance facilities. 

Additionally, commenters pointed out 

that the FAA’s own data demonstrates a 

low risk of drug use and/or alcohol 

misuse by maintenance personnel in the 

U.S. 

FAA Response 

The FAA does not have sufficient data 

to estimate a baseline level of safety risk 

associated with drug use and/or alcohol 

misuse at foreign repair stations. As 

previously discussed, the FAA received 

a minimum amount of information 

pertaining to foreign countries’ laws and 

regulations, program elements of 

acceptable drug and alcohol testing, and 

existing drug and alcohol testing 

programs in other countries. The FAA 

also recognizes that the number of 

proven accidents and incidents 

involving drug use and/or alcohol 

misuse by maintenance personnel at 

foreign repair stations is unknown. 

Because the FAA does not have testing 

data or knowledge of existing testing 

programs in other countries, the FAA is 

unable to estimate the impact of the 

proposed rule in detecting and deterring 

drug use and/or alcohol misuse at this 

time. Therefore, the FAA cannot 

determine whether the rule would have 

any additional impact on safety or 

persons performing non-safety sensitive 

functions and has, accordingly, scoped 

this proposal to address the specific 

statutory mandates in 49 U.S.C. 

44733(d)(2) and 49 U.S.C. 44733. The 

FAA invites comments on this issue. 

In addition, the FAA is considering 

how best to deter drug and alcohol 

misuse for any aircraft mechanic 

working on a part 121 aircraft regardless 

of how that mechanic is employed. 

Therefore, the FAA seeks comments as 

to whether the testing requirements in 

this proposed rule should be extended 

to foreign aircraft mechanics working 

directly for part 121 carriers. 

Commenters are asked to submit data 

that would allow the FAA to quantify 

the benefits and costs of expanding drug 

and alcohol testing requirements to 

these mechanics. 

Financial and Operational Concerns 

While many of the commenters noted 

that it was difficult to estimate the cost 

of implementing drug and alcohol 

testing programs since any testing 

regime closely resembling U.S. 

requirements does not exist in most 

areas abroad, they also noted that it was 

likely that imposition of drug and 

alcohol testing requirements would 

have a disproportionate financial impact 

on small-to-medium sized aerospace 

companies. Some commenters, 

including A4A, Honeywell, and Taikoo 

(Xiamen) Landing Gear Services Co. Ltd. 

(TALSCO), among others, provided 

some level of estimated costs. Pratt & 

Whitney, for example, provided 

estimated costs for implementing and 

maintaining a drug and alcohol testing 

program, specifics of which may be 

found in the public docket, and stated 

those extensive costs are without 

justification if the FAA cannot quantify 

the added benefit to safety. The 

Coalition of Industry Groups noted its 

concern regarding the FAA’s 

responsibility to ensure that the costs do 

not outweigh the benefits of any agency 

action. Additionally, Hong Kong Aero 

Engine Services Limited (HAESL) stated 

that extra costs will be incurred with no 

significant benefit. 


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22The FAA surmises that the commenters were 

indicating § 308(d)(1) of the FAA Modernization 

and Reform Act of 2012, which states, ‘‘The 

Secretary of State and the Secretary of 

Transportation, acting jointly, shall request the 

governments of foreign countries that are members 

of the International Civil Aviation Organization to 

establish international standards for alcohol and 

controlled substances testing of persons that 

perform safety-sensitive maintenance functions on 

commercial air carrier aircraft.’’ In response to the 

Congressional mandate, the FAA notes that prior to 

the publication of the ANPRM, the Department of 

State, in conjunction with the FAA, sent a 

demarche request to countries with active part 145 

repair stations requesting support in ICAO action. 

Of the 66 countries surveyed, 29 replied indicating 

support to establish international standards for 

effective drug and alcohol testing of all persons 

performing safety-sensitive functions on 

commercial air carrier aircraft within their country 

through ICAO initiatives. 

23 ICAO defines a ‘‘flight crew member’’ as a 

licensed crew member charged with duties essential 

to the operation of an aircraft during a flight duty 

period. ICAO Annex 1, 1.1. Section 1.2(a) identifies 

flight crew as private pilots; commercial pilots; 

multi-crew pilot; airline transport pilot; glider pilot; 

free balloon pilot; flight navigator; and flight 

engineer. Section 1.2(b) identifies other personnel 

as aircraft maintenance (technician/engineer/ 

mechanic), air traffic controllers, flight operations 

officers/flight dispatchers, and aeronautical station 

operators. 

24Annex 1, 1.2.7.1, 1.2.7.2. 

25Public Law 114–190 (Jul. 15, 2016). 

26Section 2112(b). 

FAA Response 

The FAA acknowledges the 

commenters’ concerns. The FAA used a 

combination of the estimates submitted 

by commenters and U.S. data to 

estimate costs to all part 145 foreign 

repair stations developing a drug and 

alcohol testing program that meets U.S. 

requirements. However, not all 

estimates provided by commenters were 

used as some estimates were considered 

high compared to current practice and 

estimates obtained through industry 

outreach. The FAA also acknowledges 

that small-to-medium sized aerospace 

companies would be impacted by this 

rulemaking but does not have sufficient 

data to isolate the impact to small and 

medium size foreign repair stations. 

Additionally, although the FAA is 

unable to quantify benefits, this 

proposed rule would apply the FAA’s 

primary tool for detecting and deterring 

substance abuse by safety-sensitive 

aviation employees throughout the 

international aviation community to 

enhance safety. 

International Civil Aviation 

Organization (ICAO) 

A significant number of commenters 

noted that the appropriate vehicle to set 

standards to require drug and alcohol 

testing programs worldwide would be 

an ICAO initiative. Commenters pointed 

out that the Act mandates dealing with 

this issue under the auspices of an ICAO 

initiative.22 Many of these commenters, 

including the European Commission, 

Boeing Commercial Airplanes, the 

Embassy of the Netherlands to the U.S., 

Deutsche Lufthansa, and the Cargo 

Airline Association, among others, 

supported proceeding through the ICAO 

process. Additionally, commenters 

stated it is inappropriate for the FAA to 

take further action on this issue without 

first seeking common ground through 

ICAO. IATA stated that an ICAO 

initiative would set a common baseline 

for safety with adequate flexibility for 

varying customs and laws, which 

governments could follow when issuing 

their own regulations. Most commenters 

observed that the FAA’s historical 

position regarding global drug and 

alcohol testing has been to address 

testing issues through ICAO. 

FAA Response 

The FAA supports the development of 

international standards and believes 

that they would help deter and detect 

drug and alcohol use that could 

compromise aviation safety. However, 

ICAO standards do not presently require 

ICAO Member States to establish (or 

direct industry to establish) testing 

programs to deter or detect drug use and 

alcohol misuse by aviation personnel in 

the performance of safety-sensitive 

functions. ICAO’s Annex 1 sets forth 

international standards and 

recommended practices for license 

holders concerning their mental fitness 

and use of psychoactive substances, 

including drugs and alcohol. Annex 1 

applies to flight crew members 23 and 

other personnel and recommends the 

identification and removal of license 

holders from their safety-sensitive 

functions while under the influence of 

any psychoactive substance. 

Specifically, annex 1 section 1.2.7, Use 

of Psychoactive Substances, states that 

holders of licenses provided for in this 

Annex shall not exercise the privileges 

of their licenses and related ratings 

while under the influence of any 

psychoactive substance which might 

render them unable to safely and 

properly exercise these privileges and 

shall not engage in any problematic use 

of substances.24 ICAO provides further 

guidance about drug and alcohol testing 

in its Manual on Prevention of 

Problematic Use of Substances in the 

Aviation Workplace; the manual 

outlines suitable methods of identifying 

license holders who are under the 

influence, including through 

biochemical testing under certain 

circumstances. Although the ICAO 

standards set forth in Annex 1 and 

many countries’ aviation regulations 

prohibit the use of drugs and alcohol by 

certain aviation personnel when use 

may threaten aviation safety, many 

countries either do not require testing of 

aviation personnel to verify compliance 

or do not extend testing to maintenance 

personnel. In keeping with U.S. 

obligations under the Convention on 

International Civil Aviation, it is FAA 

policy to conform to ICAO Standards 

and Recommended Practices (SARP) to 

the maximum extent practicable. 

However, the FAA proposes this rule in 

accordance with the Act’s statutory 

mandate in an area within which there 

are no ICAO SARPs. Should ICAO adopt 

drug and alcohol program standards in 

the future the FAA will work to ensure 

its drug and alcohol programs are 

aligned with such SARPs. 

3. FAA Extension, Safety, and Security 

Act of 2016 

After the FAA published the ANPRM, 

as previously discussed, Congress 

enacted the FAA Extension, Safety, and 

Security Act of 2016 (2016 Act),25

which reemphasized Congress’ 

prioritization of drug and alcohol 

programs for foreign repair station 

employees in section 2112. Specifically, 

section 2112 directed the FAA to (1) 

ensure that an NPRM is published 

within 90 days of the date of the 

enactment of the 2016 Act and (2) 

ensure that the rulemaking is finalized 

within a year of the NPRM 

publication.26 This NPRM is 

promulgated in accordance with such 

direction. The FAA notes that, while 

section 2112 (using the cross-referenced 

49 U.S.C. 44733(d)(2)) specifies 

minimum content for the NPRM, it does 

not specify minimum content for the 

final rule, which may be changed from 

the NPRM in response to comments. 

IV. Discussion of the Proposal 

A. Application of 14 CFR Part 120 and 

49 CFR Parts 40 Through 145 

Certificated Repair Stations Located 

Outside the Territory of the United 

States (§§ 120.1, 120.123 and 120.227) 

Currently, the drug and alcohol 

testing regulations in 14 CFR part 120 

require certain persons to establish a 

drug and alcohol program. These 

persons include all air carriers and 

operators certificated under 14 CFR part 

119 authorized to conduct operations 

under 14 CFR part 121 or part 135; all 

air traffic control facilities not operated 

by the FAA or under contract to the U.S. 

military; all operators as defined in 14 

CFR 91.147; all individuals who 

perform a safety sensitive function 

provided in subpart E or F of 14 CFR 


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27 14 CFR 120.1. 

28 14 CFR 120.5. 

29 14 CFR 120.123(a). 

30 14 CFR 120.227(a). 

31 49 U.S.C. 44733 specifies ‘‘aircraft 

maintenance,’’ but does not include ‘‘preventive 

maintenance.’’ Safety-sensitive functions are 

defined in 14 CFR 120.7(n) as functions listed in 14 

CFR 120.105 and 120.215. The FAA notes that the 

list of safety-sensitive functions found in 14 CFR 

120.105 and 120.215 includes aircraft maintenance 

and preventive maintenance as separate duties. The 

FAA draws a clear distinction between 

maintenance and preventive maintenance (see: 14 

CFR 1.1, expressly excluding preventive 

maintenance from the definition of maintenance 

and defining preventive maintenance as mutually 

exclusive from maintenance). Therefore, preventive 

maintenance is outside the scope of the mandate 

and is not covered in these proposed regulations. 

32Section 308 was promulgated in the U.S. Code 

as 49 U.S.C. 44733, Inspection of repair stations 

located outside the United States. Under 49 U.S.C. 

chapter 447, ‘‘United States’’ is defined as the States 

of the United States, the District of Columbia, and 

the territories and possessions of the United States, 

including the territorial sea and the overlying 

airspace. 14 CFR 1.1 similarly defines United 

States, in a geographical sense, as the States, the 

District of Columbia, Puerto Rico, and the 

possessions including the territorial waters, and the 

airspace of those areas. 

33This definition was set forth by Public Law 

103–272, section 1(e) (Jul. 5, 1994). 

34The FAA, and the legislation itself, recognize 

that countries may have different laws and 

regulations that set forth a different set of 

acceptable or prohibited drugs. Section IV.C. of this 

preamble discusses this issue in further detail. 

35Public Law 102–143, title V, 105 Stat. 952 (Oct. 

28, 1991). Specifically, OTETA required the DOT 

and agencies to look to the HHS Mandatory 

Guidelines for the scientific and technical 

guidelines regarding the drugs to be tested. 

36Because this proposal would apply 49 CFR part 

40, any type of testing allowed under part 40 would 

be permitted, including oral fluid testing once at 

least two labs are approved to test those specimens. 

37There are currently 977 part 145 repair stations 

located throughout 65 foreign countries that 

maintain an FAA-issued certificate. Many of these 

Continued 

part 120; all 14 CFR part 145 certificate 

holders who perform safety-sensitive 

functions and elect to implement a drug 

and alcohol testing program; and all 

contractors who elect to implement a 

drug and alcohol testing program.27 The 

FAA-mandated testing program consists 

of compliance with both the FAA’s drug 

and alcohol testing program 

requirements, 14 CFR part 120 (as 

applicable), as well as the OST’s 

procedural regulation, 49 CFR part 40.28

Notably, 14 CFR part 120 restricts 

these activities from occurring outside 

of the U.S. Specifically, certain 

regulations bar (1) any part of the drug 

testing process from occurring outside 

the territory of the U.S., including 

specimen collection, laboratory 

processing, and Medical Review Officer 

(MRO) actions 29 and (2) any testing for 

alcohol misuse while located outside 

the territory of the U.S.30 These 

regulations have restricted any drug and 

alcohol testing under 14 CFR part 120 

from applicability outside the territory 

of the U.S. As it pertains to this 

rulemaking, these regulations are 

applicable only to domestic part 145 

certificate holders who perform safetysensitive functions within the territories 

of the U.S. and elect to implement a 

drug and alcohol testing program under 

this part. 

The U.S. Government has found that 

drug and alcohol testing programs for 

domestic aviation personnel who 

perform safety-sensitive functions on 

part 121 aircraft are necessary given the 

potential of drugs and alcohol to impair 

human performance. Safety-sensitive 

personnel are responsible for their own 

safety as well as the safety of countless 

others due to the inherent nature of 

their positions; therefore, the FAA has 

defined certain persons as those with 

safety-sensitive functions, which 

includes individuals employed by a part 

145 repair station to perform aircraft 

maintenance duties 31 for a part 121 

operator. In the absence of data to 

support another approach to drug and 

alcohol testing, the FAA would apply its 

primary tool for detecting and deterring 

substance abuse by aviation employees 

performing safety-sensitive maintenance 

functions throughout the international 

aviation community. 

Title 49 U.S.C. 44733 requires the 

Administrator to propose a rule 

requiring that all employees responsible 

for safety sensitive maintenance 

functions on part 121 air carrier aircraft 

at part 145 repair stations located 

outside the U.S.32 be subjected to an 

alcohol and controlled substances 

testing program determined acceptable 

by the Administrator. The FAA notes 

that the legislation specifically used the 

term ‘‘controlled substances.’’ This term 

is also used in 49 U.S.C. 45102, which 

originally charged the FAA with 

prescribing regulations for air carriers 

and foreign air carriers to conduct 

certain drug and alcohol testing (i.e., 

eventual 14 CFR part 120). Title 49 

U.S.C. chapter 447 does not include a 

definition for ‘‘controlled substance.’’ 

However, the FAA finds that given (1) 

the deference to the FAA Administrator 

to determine program acceptability in 

49 U.S.C. 44733 and (2) the FAA’s 

firmly established drug and alcohol 

testing regulations based off the original 

authority in 49 U.S.C. 45201, 

‘‘controlled substances’’ should be 

intended to mean the FAA current 

definition of ‘‘drug’’ as based off the 

definition of ‘‘controlled substances’’ 

provided by 49 U.S.C. 45201.33

Specifically, 49 U.S.C. 45101 states that 

the definition of ‘‘controlled substance’’ 

means any substance under section 102 

of the Comprehensive Drug Abuse 

Prevention and Control Act of 1970 

specified by the Administrator of the 

FAA.34

In 14 CFR 120.7, the FAA defines a 

‘‘prohibited drug’’ as any of the drugs 

specified in 49 CFR part 40. OST 

defines ‘‘drugs’’ as marijuana, cocaine, 

amphetamines, phencyclidine (PCP), 

and opioids in 49 CFR 40.3. These drugs 

are aligned with the HHS Mandatory 

Guidelines established by the HHS for 

Federal drug-testing programs for 

scientific testing issues, pursuant to 

OTETA, as previously discussed 35 and 

updated as HHS updates their drug 

categories. Specifically, the HHS 

Mandatory Guidelines allow Federal 

agencies with drug-testing 

responsibilities to test for certain 

controlled substances set forth by the 

Controlled Substances Act (i.e., the 

drugs as defined in 49 CFR 40.3), which 

is title II of the Comprehensive Drug 

Abuse Prevention and Control Act of 

1970.36 Additionally, the FAA does not 

believe that Congress intended to 

expand the scope of testing beyond that 

required by current airmen and safetysensitive positions. Should the FAA 

adopt a differing definition of 

‘‘controlled substances,’’ part 145 repair 

stations outside the U.S. would be held 

to more stringent standards than those 

required for domestically situated 

current airmen and safety-sensitive 

positions. Neither the FAA, nor the 

OST, has a mechanism to regulate such 

standards at this time. Therefore, the 

FAA finds that the established term 

‘‘drug’’ meets the intention of Congress 

in using the term ‘‘controlled 

substances.’’ 

The FAA, as discussed in section 

III.A. of this preamble, has long held 

that the standards set forth in 14 CFR 

part 120 and 49 CFR part 40 are 

acceptable drug and alcohol testing 

programs for the aforementioned safetysensitive functions. The FAA finds that 

requirements of part 145 repair stations 

located outside the territory of the U.S. 

should mirror those inside the U.S. who 

elect to have a drug and alcohol 

program. Specifically, the FAA lacks the 

data or studies that would support a 

deviation from the current program 

requirements as applicable to those 

persons who perform safety-sensitive 

functions (i.e., 14 CFR part 120 and 49 

CFR part 40). Therefore, this proposal 

would require all employees of part 145 

repair stations located outside the 

territory of the U.S. who perform safetysensitive maintenance functions on part 

121 air carrier aircraft 37 to be subject to 


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repair stations provide maintenance functions to 

part 121 air carrier aircraft. 

38The FAA notes that domestic repair stations 

may elect to implement a drug and alcohol testing 

program; however, foreign repair stations must 

implement a drug and alcohol testing program 

covering employees who perform maintenance on 

part 121 aircraft. If a domestic repair station does 

not elect to implement a drug and alcohol testing 

program, then the part 121 air carrier must cover 

the repair station’s safety-sensitive employees 

under its FAA drug and alcohol testing program. 

39The FAA finds that a one-year implementation 

date from the effective date of the legislation would 

give part 145 repair stations outside the territory of 

the U.S. sufficient time to identify laws that may 

contradict the regulations set forth in 14 CFR part 

120 and 49 CFR part 40 and provide the FAA and 

DOT sufficient time to process waivers and 

exemptions, respectively, addressing such barriers. 

the current FAA-mandated testing 

programs. Accordingly, for purposes of 

49 U.S.C. 44733(d)(2), the Administrator 

finds that the current drug and alcohol 

testing scheme is acceptable in 

applicability to the affected part 145 

repair stations outside the territory of 

the U.S. 

Therefore, the FAA proposes three 

revisions to 14 CFR 120.1, which 

outlines to whom part 120 applies. First, 

the FAA proposes to revise current 14 

CFR 120.1(c) to specify that paragraph 

(c) applies to those part 145 certificate 

holders located in the territory of the 

U.S. who elect to implement a drug and 

alcohol testing program under 14 CFR 

part 120. The FAA notes that there is no 

substantive change to the current 

applicability of domestic part 145 

certificate holders. Next, the FAA 

proposes to expand applicability of 14 

CFR part 120 to all part 145 certificate 

holders outside the territory of the U.S. 

who perform safety-sensitive 

maintenance functions on part 121 air 

carrier aircraft by adding new paragraph 

(d).38 This, in turn, would redesignate 

current 14 CFR 120.1(d) as paragraph 

(e). 

Additionally, the FAA finds it 

necessary to provide specific 

instructions to affected part 145 repair 

stations outside the territory of the U.S., 

consistent with the requirements for 

other affected persons (i.e., the persons 

listed in 14 CFR 120.1), on how to 

obtain the necessary authority to 

implement a drug and alcohol testing 

program. Specifically, 14 CFR 120.117 

and 120.225 set forth certain 

requirements specific to the person 

implementing a drug and alcohol testing 

program and do not currently include 

part 145 repair stations affected by this 

proposed rulemaking. 

The FAA, therefore, proposes three 

revisions to the charts set forth in 14 

CFR 120.117(a) and (c), which would 

treat applicable part 145 repair stations 

outside the territory of the U.S. similar 

to those domestic part 145 repair 

stations who choose to enact their own 

drug testing programs. First, 14 CFR 

120.117(a) provides the documentation 

that a company must obtain from the 

FAA to implement a drug testing 

program: an Antidrug and Alcohol 

Misuse Prevention Program Operations 

Specification (A449), Letter of 

Authorization (A049), or Drug and 

Alcohol Testing Program Registration. 

Second, a revision to paragraph (a)(5) is 

necessary to specify the requirements in 

that paragraph, which permit a repair 

station to elect to implement a testing 

program, are applicable only to part 145 

certificate holders located inside the 

territory of the U.S. Finally, the FAA 

proposes to add new paragraph (a)(6) 

within the chart in 14 CFR 120.117. 

This paragraph would require a part 145 

repair station located outside the 

territory of the U.S. whose employees 

perform safety-sensitive maintenance 

functions on part 121 air carrier aircraft 

to obtain an A449 in their Operations 

Specification by contacting the repair 

station’s Principal Maintenance 

Inspector. The A449 serves as the 

certification to comply with the drug 

and alcohol testing regulations, 49 CFR 

part 40 and 14 CFR part 120. In turn, 

current 14 CFR 120.117(a)(6) would be 

redesignated as paragraph (a)(7). 

Similarly, 14 CFR 120.117(c) 

prescribes certain requirements 

pertaining to the implementation of an 

Antidrug and Alcohol Misuse 

Prevention Program. The FAA proposes 

several revisions to 14 CFR 120.117(c). 

First, a revision to paragraph (c)(1) is 

necessary to specify the requirements in 

that paragraph are applicable only to 

part 145 certificate holders located 

inside the territory of the U.S. Next, the 

FAA proposes new paragraph (c)(2) to 

require the applicable repair station 

located outside the territory of the U.S. 

to (1) obtain an A449 in their Operations 

Specification by contacting the repair 

station’s Principal Maintenance 

Inspector, (2) implement the drug 

testing program no later than one year 

from the effective date of the 

regulation 39 (or, if a foreign repair 

station begins operations more than one 

year after the effective date of the 

regulation, implement a drug testing 

program no later than the date the repair 

station begins operations), and (3) meet 

the requirements of 14 CFR part 120, 

subpart E. In turn, current 14 CFR 

120.117(c)(2) would be redesignated as 

paragraph (c)(3). Finally, the FAA 

proposes minor grammatical changes to 

the headings of the chart set forth by 14 

CFR 120.117(c) and introductory text of 

paragraphs (c)(1) and (3) to conform 

with the heading revisions. 

Subpart F of 14 CFR part 120 sets 

forth the alcohol testing program 

requirements. The requirements 

pertaining to implementation largely 

mirror those set forth in subpart E, Drug 

Testing Program Requirements. The 

FAA, therefore, proposes similar 

amendments to the implementation 

charts set forth in 14 CFR 120.225(a) 

and (c) for the same reasons as 

previously discussed. Specifically, in 14 

CFR 120.225(a), the FAA proposes to: 

first, revise the introductory language of 

paragraph (a)(5) to specify that 

paragraph is applicable to part 145 

certificate holders located inside the 

territory of the U.S.; second, add new 

paragraph (a)(6) to include the 

requirements for a part 145 repair 

station located outside the territory of 

the U.S. who performs safety-sensitive 

maintenance functions on part 121 air 

carrier aircraft; and, third, redesignate 

current paragraph (a)(6) as new (a)(7). 

Likewise, in 14 CFR 120.225(c), the 

FAA proposes to: first, revise paragraph 

(c)(1) as necessary to specify the 

requirements in that paragraph are 

applicable only to part 145 certificate 

holders located inside the territory of 

the U.S.; second, add new paragraph 

(c)(2) to require the applicable repair 

station located outside the territory of 

the U.S. to (1) obtain an A449 in their 

Operations Specification by contacting 

the repair station’s Principal 

Maintenance Inspector, (2) implement 

the drug testing program no later than 

one year from the effective date of the 

regulation (or, if a foreign repair station 

begins operations more than one year 

after the effective date of the regulation, 

implement a drug testing program no 

later than the date the repair station 

begins operations), and (3) meet the 

requirements of 14 CFR part 120, 

subpart E; and, third, redesignate 

current paragraph (c)(2) as (c)(3). 

Finally, the FAA proposes, first, minor 

grammatical changes to the headings of 

the chart set forth by 14 CFR 120.225(c) 

and introductory text of paragraphs 

(c)(1) and (3) to conform with the 

heading revisions and, second, to add 

the correct introductory text in 

paragraph (d), which is currently and 

inadvertently blank in the regulations. 

B. Conforming Amendments To 

Facilitate Drug and Alcohol Procedures 

Outside the United States (§§ 120.123 

and 120.227) 

There are certain regulations in 14 

CFR part 120 that effectively restrict any 

drug and alcohol programs from 

implementation outside of the U.S. 

Specifically, 14 CFR 120.123(a) bars any 


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40 49 CFR 40.3 sets forth the terms used in part 

40 and includes the definition for laboratory, which 

is any U.S. laboratory certified by HHS under the 

National Laboratory Certification Program as 

meeting the minimum standards of Subpart C of the 

HHS Mandatory Guidelines for Federal Workplace 

Drug Testing Programs; or, in the case of foreign 

laboratories, a laboratory approved for participation 

by DOT under part 40. Laboratories participating in 

the DOT drug testing program must comply with 

the requirements of 49 CFR part 40 and with all 

applicable requirements of HHS in testing DOT 

specimens. Currently, a laboratory located in the 

U.S. is permitted to participate in DOT drug testing 

only if it is certified by HHS under the National 

Laboratory Certification Program (NLCP), or, in the 

case of a foreign laboratory, if it is approved for 

participation by the DOT with respect to part 40. 

The FAA recognizes that there are, first, no HHS 

certified laboratories in any of the foreign countries 

impacted by this rulemaking and, second, that there 

is a multitude of differently situated laboratories 

internationally. Therefore, a foreign laboratory 

would be required to seek approval in accordance 

with DOT procedures under 49 CFR part 40. 

part of the drug testing process from 

being conducted outside the territory of 

the U.S. and requires that employees 

assigned safety-sensitive functions 

solely outside the territory of the U.S. to 

be removed from random testing pools, 

only to be returned once the covered 

employee has resumed functions wholly 

or partially in the U.S. Additionally, 14 

CFR 120.123(b) states that the 

provisions of subpart E (Drug Testing 

Program Requirements) do not apply to 

any individual who performs a function 

pursuant to 14 CFR 120.105 by contract 

for an employer outside the territory of 

the U.S. Likewise, 14 CFR 120.227(a) 

bars covered employees from being 

tested for alcohol misuse while located 

outside the territory of the U.S. and 

mirrors the requirement of removal of a 

covered employee outside the territory 

of the U.S. from the random testing pool 

as with drug testing programs 

previously discussed. Additionally, 14 

CFR 120.227(b) states that the 

provisions of subpart E (Alcohol Testing 

Program Requirements) do not apply to 

any individual who performs a safety 

sensitive function by contract for an 

employer outside the territory of the 

U.S. 

The FAA recognizes that these 

regulations serve as barriers to the 

implementation of a drug and alcohol 

testing program for a part 145 repair 

station outside the territory of the U.S. 

Without conforming amendments to 

except these repair stations from 14 CFR 

120.123 and 120.227, it would be 

impossible to comply with the proposed 

regulations and the current regulations. 

Therefore, the FAA proposes to amend 

§§ 120.123 and 120.227 to allow drug 

and alcohol testing processes to be 

conducted on employees of part 145 

repair stations located outside the 

territory of the U.S. who perform safetysensitive maintenance functions on part 

121 air carrier aircraft. Specifically, this 

proposal would add language at the 

beginning of 14 CFR 120.123(a), 

120.123(a)(1), 120.123(b), 120.227(a), 

120.227(a)(1), and 120.227(b) that would 

except persons under proposed 14 CFR 

120.1(d) from applicability of those 

regulations restricting drug and alcohol 

testing outside the territory of the U.S. 

Currently, part 121 air carriers are 

responsible for ensuring that 

individuals who perform safetysensitive maintenance functions within 

the territory of the U.S. are subject to 

testing. If a part 121 air carrier does not 

include a maintenance worker under 

their own testing program, it must 

ensure the worker is included in the 

FAA-mandated testing program of 

whomever the air carrier uses to 

perform safety-sensitive maintenance 

functions (e.g., a part 145 repair station). 

In keeping with the congressional 

mandate, this proposal does not change 

the language of the regulation that 

removes part 121 employees located 

outside of the territory of the U.S. from 

the testing pool. Thus, part 121 air 

carriers that directly perform their own 

maintenance outside the territory of the 

U.S. would not be required to test their 

employees for drugs and alcohol. If the 

part 121 air carrier decides to hire 

(either as an employee or an 

independent contractor) the foreign part 

145 repair station employees who work 

on its aircraft, then those employees 

would not be subject to testing because 

the part 121 air carrier is restricted from 

including into its testing pool 

employees who work solely outside the 

territory of the U.S. 

This approach is consistent with the 

statutory mandate, which did not 

address drug and alcohol testing of part 

121 employees performing safetysensitive maintenance functions outside 

the territory of the U.S. As previously 

discussed, the FAA lacks safety data 

and supporting research to support a 

proposal of drug and alcohol testing 

beyond that required by the legislation. 

However, the FAA is considering how 

best to deter drug use and alcohol 

misuse for any aircraft mechanic 

working on a part 121 aircraft regardless 

of how that mechanic is employed. 

Therefore, the FAA seeks comments, 

with supporting data, as to whether the 

testing requirements in this proposed 

rule should be extended to foreign 

aircraft mechanics working directly for 

part 121 carriers. 

C. Exemptions and Waivers to Drug and 

Alcohol Program Requirements 

(§§ 120.5 and 120.9) 

The FAA recognizes that the different 

laws and regulations of some countries 

(including, but not limited to, privacy 

laws) may place limitations on drug and 

alcohol testing, prohibit it entirely, or 

place conditions on how testing would 

be done. In fact, Congress contemplated 

this potential barrier in 49 U.S.C. 

44733(d)(2), as evidenced by the 

language requiring the drug and alcohol 

program to be both acceptable to the 

Administrator and consistent with the 

applicable laws of the country in which 

the repair station is located. As 

previously discussed in the responses to 

comments to the ANPRM, the FAA 

seeks to avoid situations whereby the 

regulations of the FAA are inconsistent 

with laws in other sovereign countries. 

As this proposal extends the drug and 

alcohol testing requirements beyond the 

territory of the U.S., the FAA realizes 

that the different laws of some 

countries, including, but not limited to, 

privacy laws, may place limitations on 

drug and alcohol testing or prohibit it 

entirely. For example, some countries 

may bar pre-employment drug testing, 

which is required by 14 CFR 120.109(a). 

Section 120.5 requires each employer 

having a drug and alcohol testing 

program under part 120 to ensure that 

all drug and alcohol testing conducted 

under that part complies with the 

procedures set forth in 49 CFR part 40. 

In evaluating the effects of the 

congressional mandate, the FAA has 

scrutinized the many challenges 

associated with the establishment and 

implementation of drug and alcohol 

testing programs outside the U.S. that 

comply with both the FAA regulations 

and the DOT’s testing standards and 

procedures.40 In cases in which 

compliance with certain provisions of 

49 CFR part 40 would not be attainable 

due to legal restrictions in the country 

where testing must occur, the part 145 

repair station could apply for an 

exemption from part 40 using the 

process described in 49 CFR 40.7. Under 

§ 40.7, an exemption will only be 

granted if the requestor documents 

special or exceptional circumstances 

(e.g., a country’s law) that make 

compliance with a specific provision of 

49 CFR part 40 impracticable. To 

acknowledge the potential need for 

foreign repair stations to obtain 

exemptions issued by the DOT from 49 

CFR part 40, the FAA proposes to add 

language to 14 CFR 120.5 to clarify that 

an employer’s drug and alcohol testing 

conducted pursuant to 14 CFR part 120 

must comply with the procedures set 

forth in 49 CFR part 40, to include any 

exemptions issued to that employer in 

accordance with 49 CFR 40.7. 

Traditionally, when a person cannot 

comply with an FAA regulation, the 

person may seek an exemption through 


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the procedures set forth by 14 CFR part 

11. However, to streamline and 

efficiently address potential 

international legal conflicts, the FAA 

proposes to add waiver authority in new 

14 CFR 120.9 that will allow repair 

stations located outside of the U.S. to 

request waivers from specific provisions 

of 14 CFR part 120. Specifically, 

proposed 14 CFR 120.9(a) sets forth the 

waiver authority for those applicable 

repair stations that would be unable to 

comply with the requirements of 14 CFR 

part 120 due to the laws of the country 

within which the repair station is 

located. New paragraph (b) would set 

forth the information required by the 

Administrator to evaluate and process 

the waiver request. 

For example, the Administrator 

requires basic informational details; the 

specific section(s) of 14 CFR part 120 

from which a waiver is sought; the 

reasons why granting the waiver would 

not contravene the purpose of 14 CFR 

part 120, as defined in § 120.5; a copy 

of the law that is inconsistent with 14 

CFR part 120; an explanation of how the 

law applies to affected employees and 

how it is inconsistent with 14 CFR part 

120; and a description of alternate 

means used to achieve the objectives of 

the part 120 provision from which the 

waiver is sought (or, if it is impossible 

to achieve the objective by alternative 

means, a justification of why it would 

be so). Finally, new 14 CFR 120.9(c) 

would provide the manner in which the 

repair station should submit their 

waiver request. 

The FAA finds that the existing 

exemption process in 49 CFR part 40 in 

tandem with the proposed waiver 

process in new 14 CFR 120.9 would 

provide sufficient pathways to work 

with part 145 certificated repair stations 

outside the territory of the U.S. to 

ensure these repair stations are not in 

violation of the laws of the country 

within which they are situated. The 

FAA notes that each process is intended 

to provide relief for its respective 

regulations. While the FAA requires 

compliance with 49 CFR part 40 

through its regulations, the FAA does 

not have the authority to exempt a 

person from the regulations situated 

there, and person should not request a 

waiver from the FAA for relief from the 

DOT’s regulations. If a person 

determines they cannot meet certain 49 

CFR part 40 requirements (e.g., if their 

country’s laws do not allow drug testing 

for one or more of the drugs required 

under 49 CFR 40.85), the person should 

follow the process set forth by 49 CFR 

40.7; should the DOT grant the 

exemption, the FAA would recognize 

the exemption through proposed 14 CFR 

120.5. Likewise, the waiver process set 

forth in new 14 CFR 120.9 provides an 

avenue by which a person may seek 

relief from FAA regulations that a 

person determines they cannot meet 

(e.g., if their country’s laws do not allow 

pre-employment drug testing, which is 

required under 14 CFR 120.109(a)). As 

such, a person may have to appeal to 

both the DOT and FAA for an 

exemption and a waiver, respectively, if 

there are regulations in each part that a 

person seeks relief from. 

D. Impact on International Agreements 

As noted in the discussion of 

comments to the ANPRM, commenters 

raised concerns regarding the impact of 

the legislation and enabling regulations 

on existing Bilateral Aviation Safety 

Agreements (BASA). However, 

commenters have not identified any 

specific BASAs that are in conflict with 

the statutory requirements this proposed 

rule would implement, nor is FAA 

aware of any at this time. The FAA 

invites comments as to whether there 

are any BASAs that would conflict with 

the requirements of this proposed rule. 

V. Regulatory Notices and Analyses 

Federal agencies consider impacts of 

regulatory actions under a variety of 

Executive orders and other 

requirements. First, Executive Order 

12866 and Executive Order 13563, as 

amended by Executive Order 14094 

(‘‘Modernizing Regulatory Review’’), 

direct that each Federal agency may 

propose or adopt a regulation only upon 

a reasoned determination that the 

benefits of the intended regulation 

justify its costs. Second, the Regulatory 

Flexibility Act of 1980 (Pub. L. 96–354) 

requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (Pub. L. 96–39 as 

amended) prohibits agencies from 

setting standards that create 

unnecessary obstacles to the foreign 

commerce of the U.S. In developing U.S. 

standards, the Trade Agreements Act 

requires agencies to consider 

international standards and, where 

appropriate, that they be the basis of 

U.S. standards. Fourth, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4) requires agencies to prepare a 

written assessment of the costs, benefits, 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more (adjusted annually 

for inflation) in any one year. The 

current threshold after adjustment for 

inflation is $177,000,000, using the most 

current (2022) Implicit Price Deflator for 

the Gross Domestic Product. This 

portion of the preamble summarizes the 

FAA’s analysis of the economic impacts 

of this proposed rule. The FAA has 

provided a more detailed Regulatory 

Impact Analysis of this proposed rule in 

the docket of this rulemaking. 

In conducting these analyses, the FAA 

has determined that this proposed rule: 

is a ‘‘significant regulatory action,’’ as 

defined in section 3(f) of Executive 

Order 12866 because it raises legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in Executive Order 12866 as 

amended by Executive Order 14094; 

could have a significant economic 

impact on a substantial number of small 

entities; could create unnecessary 

obstacles to the foreign commerce of the 

U.S.; and would not impose an 

unfunded mandate on state, local, or 

tribal governments, or on the private 

sector by exceeding the threshold 

identified above. These analyses are 

summarized below. 

A. Regulatory Evaluation 

Total Benefits and Costs of This Rule 

In response to Congressional 

direction, the FAA proposes to require 

certificated part 145 repair stations 

located outside the U.S. and its 

territories whose employees perform 

safety-sensitive maintenance functions 

on part 121 air carrier aircraft to ensure 

those employees are subject to a 

controlled substance and alcohol testing 

program consistent with the applicable 

laws of the country in which the repair 

station is located. This proposed rule 

would require part 145 repair station 

located outside the territory of the U.S. 

to cover its employees performing 

maintenance functions on part 121 air 

carrier aircraft under its own testing 

program that meets the requirements of 

49 CFR part 40 and 14 CFR part 120. 

However, if a part 145 repair station 

cannot meet one or all requirements in 

49 CFR part 40 (e.g., the laws of the 

country where the repair station is 

located are inconsistent with the 

regulations), they may apply for an 

exemption using the process described 

in 49 CFR 40.7. Similarly, if a part 145 

repair station cannot meet one or all 

requirements in 14 CFR part 120, they 

may apply for a waiver in accordance 

with proposed waiver authority. 

Although there are no quantifiable 

benefits, this rulemaking would apply 

the FAA’s existing primary tool for 

detecting and deterring substance abuse 

by safety-sensitive aviation employees, 

especially illegal drug use, throughout 


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the international aviation community to 

enhance aviation safety. The total cost, 

at seven percent present value, of this 

proposed rule equals the foreign repair 

station cost of $102.3 million, plus FAA 

cost of $6.3 million for a total of $108.7 

million ($122.4 million at three percent 

present value) over five years. 

Who is potentially affected by this rule? 

• Part 145 Certificated Foreign Repair 

Station outside the U.S. that performs 

safety-sensitive maintenance functions 

on part 121 aircraft. 

• The FAA Office of Aerospace 

Medicine. 

I. Costs of This Rule 

Part 145 certificated foreign repair 

stations outside the U.S. and the FAA 

would incur the cost of this proposed 

rule. The estimated cost of the proposed 

rule to part 145 certificated foreign 

repair stations are the costs to 

implement a drug and alcohol testing 

program that adheres to U.S. domestic 

testing standards. Cost to foreign repair 

stations would consist of developing a 

drug and alcohol testing program, 

training, testing safety sensitive 

maintenance employees for drugs and 

alcohol, and documentations. Total cost 

to foreign repair stations over five years, 

at seven percent present value, sums to 

$102.3 million with and annualized cost 

of $24.9 million. At three percent 

present value, estimated total cost to 

foreign repair stations is $115.2 million 

with an annualized cost of $25.1 

million. 

TABLE 1—COST TO PART 145 FOREIGN REPAIR STATIONS OVER 5 YEARS

[$Millions] * 

Year 

Program and 

training 

development 

& maintenance 

Training 

Testing 

(drug and 

alcohol) 

Annual 

reports 

Total cost 

(7% PV) 

Total cost 

(3% PV) 

1 ............................................................... $0.5 $12.9 $0.0 $3.8 $16.1 $16.7 

2 ............................................................... 0.4 2.2 9.0 14.1 22.5 24.3 

3 ............................................................... 0.4 2.3 9.4 14.7 21.9 24.5 

4 ............................................................... 0.4 2.4 9.7 15.3 21.2 24.7 

5 ............................................................... 0.4 2.5 10.1 15.9 20.6 24.9 

Total .................................................. 2.2 22.2 38.3 63.9 102.3 115.2 

* These numbers are subject to rounding error. 

Cost to the FAA would include 

inspections and the necessary 

documentation associated with 

monitoring these repair stations. Total 

cost to FAA over five years, at seven 

percent present value, sums to $6.3 

million with an annualized cost of $1.5 

million. At three percent present value, 

total cost is $7.2 million with an 

annualized cost of $1.6 million. 

The FAA also invites commenters to 

submit data that would allow it to 

quantify the costs of extending this 

proposed rule to foreign aircraft 

mechanics employed directly by part 

121 certificate holders. 

II. Benefits of This Rule 

Congress mandated that the FAA 

propose a rule that establishes drug and 

alcohol testing programs for foreign 

repair stations. Any benefits of the 

regulations would result from potential 

reductions in safety risks, any 

improvements in safety in detecting and 

deterring drug use and/or alcohol 

misuse, and worker productivity. The 

FAA concludes that two specific sets of 

benefits may accrue from this 

rulemaking: 

• The prevention of potential injuries 

and fatalities and property losses 

resulting from accidents attributed to 

drug use/alcohol misuse or neglect or 

error on the part of individuals whose 

judgement or motor skills may be 

impaired by the presence of alcohol or 

drugs; and 

• The potential reduction in 

absenteeism, lost worker productivity, 

and other cost to employers, as well as 

improved general safety in the 

workplace, by the deterrence of drug use 

and/or alcohol misuse. 

However, the FAA lacks sufficient 

data to estimate a baseline level of safety 

risk associated with a drug and alcohol 

testing program at part 145 certificated 

foreign repair stations that perform 

safety sensitive maintenance on part 121 

aircraft. Additionally, it is difficult to 

estimate (and the FAA does not have 

data on) the impact of the proposed rule 

in detecting and deterring drug use and/ 

or alcohol misuse. To estimate safety 

and productivity benefits that would 

result from this proposed rule, the FAA 

would need estimates of the following: 

• Baseline risks attributable to drug 

use and/or alcohol misuse; 

• Effectiveness of the rule; and 

• Value of the reduction in risk of 

affected outcomes. 

The FAA invites comments on this 

issue. The FAA also invites commenters 

to submit data that would allow it to 

quantify the safety and productivity 

benefits of extending this proposed rule 

to foreign aircraft mechanics employed 

directly by part 121 certificate holders. 

Baseline Risks Attributable to Drug Use 

and/or Alcohol Misuse 

The FAA does not have data to 

estimate a baseline level of safety risk 

associated with safety-sensitive 

maintenance personnel drug use and/or 

alcohol misuse. The FAA acknowledges 

there have been no accidents or 

incidents related to safety-sensitive 

maintenance personnel using drugs or 

alcohol. The FAA may use accidents or 

incidents related to part 121 aircraft that 

list maintenance as either a cause or 

factor in the accident report as a proxy 

to assess the decreased risk of injuries, 

fatalities, and property losses. However, 

it is difficult to attribute an accident or 

incident that occurs months after the 

maintenance was completed to poor 

maintenance work related to drug use 

and/or alcohol misuse. 

Effectiveness of the Rule 

The FAA would also need data on the 

effect of the rule on maintenance 

workers’ drug use and/or alcohol misuse 

and the resulting effect on job 

performance. For example, drug and 

alcohol programs may serve as a 

deterrent, resulting in less drug use and/ 

or alcohol misuse by employees and 

higher productivity. However, it would 

be difficult to analyze the direct causal 

effect of less drug use and/or alcohol 

misuse to improved productivity. The 

FAA would need to retrieve extensive 

data, such as employees’ health levels, 


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41 DOT Departmental Guidance on Valuation of a 

Statistical Life. Economic Analyses. Office of the 

Secretary of Transportation. https://

www.transportation.gov/office-policy/ 

transportation-policy/revised-departmentalguidance-on-valuation-of-a-statistical-life-ineconomic-analysis. 

employees’ sleep patterns, changes to 

operating procedures, levels of 

education and training, and staffing 

levels, amongst other factors, to isolate 

the direct effect of a decrease in drug or 

alcohol usage on productivity levels. 

Additionally, even if this data were 

available, the analysis would be 

extensive and there would be academic 

questions regarding whether the causal 

effect was properly measured. 

Additionally, as mentioned above, 

there are no accidents or incidents 

directly related to drug use and/or 

alcohol misuse to estimate the effect of 

the rule on injuries, fatalities, or 

property loss. Therefore, there is a lack 

of information to establish a baseline. 

Value of Risk Reduction 

The safety risks from drug use and/or 

alcohol misuse are increased risk of 

injuries and fatalities in the event of an 

accident or incident. The FAA values 

the reductions in such risks using the 

value of statistical life (VSL) for 

fatalities and fractions of the VSL based 

on the Maximum Abbreviated Injury 

Scale (MAIS) for injuries. The 

Department of Transportation guidance 

on valuing reductions in fatalities and 

injuries 41 could be used to monetize 

and quantify estimates of the potential 

safety benefits associated with this 

rulemaking. 

Alternatives Considered 

Alternative 1—the Status Quo—The 

status quo represents a situation in 

which the FAA would not propose to 

require part 145 foreign repair stations 

to test their safety-sensitive 

maintenance personnel for drugs and 

alcohol. This alternative is counter to 

Congressional direction and, therefore, 

rejected. 

Alternative 2—The FAA would work 

through the International Civil Aviation 

Organization (ICAO) to create an 

international standard for drug and 

alcohol testing of maintenance 

personnel at repair stations. While the 

FAA is willing to work with ICAO, that 

alternative may not meet Congressional 

direction due to the multitude of 

Member State equities considered in the 

implementation of an ICAO standard. In 

other words, Congress directed the FAA 

to establish a program acceptable to the 

Administrator; working through ICAO 

to create an international standard may 

not expeditiously meet this intention 

given the time, resources, and scope of 

the adoption of an international 

standard. 

B. Regulatory Flexibility Determination 

The Regulatory Flexibility Act (RFA) 

of 1980, Public Law 96–354, (5 U.S.C. 

601–612), as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121) 

and the Small Business Jobs Act of 2010 

(Pub. L. 111–240), requires Federal 

agencies to consider the effects of the 

regulatory action on small business and 

other small entities and to minimize any 

significant economic impact. The term 

‘‘small entities’’ comprises small 

businesses and not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. 

The FAA is publishing this Initial 

Regulatory Flexibility Analysis (IRFA) 

to aid the public in commenting on the 

potential impacts to small entities from 

this proposal. The FAA invites 

interested parties to submit data and 

information regarding the potential 

economic impact that would result from 

the proposal. The FAA will consider 

comments when making a 

determination or when completing a 

Final Regulatory Flexibility Analysis. 

Under section 603(b) and (c) of the 

RFA, an IRFA must contain the 

following: 

(1) A description of the reasons why 

the action by the agency is being 

considered; 

(2) A succinct statement of the 

objective of, and legal basis for, the 

proposed rule; 

(3) A description of and, where 

feasible, an estimate of the number of 

small entities to which the proposed 

rule will apply; 

(4) A description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the 

proposed rule, including an estimate of 

the classes of small entities which will 

be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record; 

(5) An identification, to the extent 

practicable, of all relevant Federal rules 

that may duplicate, overlap, or conflict 

with the proposed rule; and 

(6) A description of any significant 

alternatives to the proposed rule that 

accomplish the stated objectives of 

applicable statutes and that minimize 

any significant economic impact of the 

proposed rule on small entities. 

1.1 Reasons the Action Is Being 

Considered 

The proposed rule is in response to 

Congressional mandate that the FAA 

propose a rule to establish drug and 

alcohol testing program requirements 

for part 145 repair stations outside the 

territory of the United States that 

provide safety-sensitive maintenance 

functions for part 121 air carriers 

acceptable to the FAA Administrator. 

1.2 Objectives and Legal Basis of the 

Proposed Rule 

This proposed rule would require 

certificated part 145 repair stations 

located outside the territory of the 

United States (U.S.) to ensure that 

employees who perform aircraft 

maintenance on part 121 air carrier 

aircraft are subject to a drug and alcohol 

testing program. A part 145 repair 

station located outside the territory of 

the U.S. would cover its employees 

performing maintenance functions on 

part 121 air carrier aircraft under its 

own testing program meeting the 

requirements of 49 CFR part 40 and 14 

CFR part 120. If a part 145 repair station 

cannot meet one or all requirements in 

49 CFR part 40 (e.g., the laws of the 

country where the repair station is 

located are inconsistent with the 

regulations), the part 145 repair station 

may apply for an exemption using the 

process described in 49 CFR 40.7. 

Similarly, if a part 145 repair station 

cannot meet one or all requirements in 

14 CFR part 120, they may apply for a 

waiver in accordance with proposed 

waiver authority. 

The FAA’s authority to issue rules on 

aviation safety is in title 49 of the 

United States Code (49 U.S.C.), 

specifically 49 U.S.C. 106 and 49 U.S.C. 

45102. This proposed rule is further 

promulgated under section 308 of the 

FAA Modernization and Reform Act of 

2012 (the Act) (49 U.S.C. 44733) and 

section 2112 of the FAA Extension, 

Safety, and Security Act of 2016, which 

directed publication of a notice of 

proposed rulemaking in accordance 

with 49 U.S.C. 44733. 

1.3 All Federal Rules That May 

Duplicate, Overlap, or Conflict 

There are no relevant Federal rules 

that may duplicate, overlap, or conflict 

with the proposed rule. 

1.4 Description and Estimate of the 

Number of Small Entities 

This proposed rule would impact part 

145 repair stations located outside the 

territory of the U.S. that perform safety 

sensitive maintenance functions on part 

121 air carrier aircraft. The act defines 

a small business as ‘‘a business entity 


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42 13 CFR 121.105(a)(1). The Regulatory 

Flexibility Act defines a ‘‘small business’’ as having 

the same meaning as ‘‘small business concern’’ 

under section 3 of the Small Business Act. 5 U.S.C. 

601(3). Section 121.105 of 13 CFR contains the 

Small Business Administration’s implementing 

regulations clarifying the definition of ‘‘small 

business concern.’’ 

43Small Business Administration (SBA). 2019. 

Table of Size Standards. Effective August 12, 2019. 

https://www.sba.gov/document/support--table-sizestandards. 

44Final Rule, Supplemental Regulatory 

Flexibility Determination, Antidrug and Alcohol 

Misuse Prevention Programs for Personnel Engaged 

in Specified Aviation Activities: Supplemental 

Regulatory Flexibility Determination, 76 FR 12559 

(Mar. 8, 2011). 

45The calculation is as follows: 977*.9328 = 

911.31. This estimate is rounded up to get 912. 

46 $126,495,150/977 = $129,473.03. 

organized for profit, with a place of 

business located in the United States, 

and which operates primarily within the 

United States or which makes a 

significant contribution to the U.S. 

economy through payment of taxes or 

use of American products, materials or 

labor.’’ 42 While the regulatory 

flexibility determination does not 

require small foreign entities to be 

considered, foreign repair stations may 

be using U.S. components or labor, 

especially if they are working on U.S. 

manufactured aircraft; therefore, the 

FAA assumes the RFA would apply. 

The SBA (2022) established size 

standards for various types of economic 

activities, or industries, under the North 

American Industry Classification 

System (NAICS).43 These size standards 

generally define small businesses based 

on the number of employees or annual 

receipts. Table 2 shows the SBA size 

standard, based on the NAICS code, 

applicable to repair stations, as it 

encompasses air transport support 

activities to include aircraft 

maintenance and repair services. 

TABLE 2—SMALL BUSINESS SIZE STANDARDS: AIRCRAFT MAINTENANCE AND REPAIR SERVICES

NAICS 

code Description Size standard 

488190 ..................................... Other Support Activities for Air Transportation .......................................................................... $40.0 million. 

Source: SBA (2022). 

NAICS = North American Industrial Classification System. 

SBA = Small Business Administration. 

Although the FAA was able to 

identify a size standard for repair 

stations to be considered small, the FAA 

lacks financial data to determine if 

foreign repair stations meet the 

applicable size standard. Instead, the 

FAA provides an analysis estimating the 

total cost to small entities based on 

available data for domestic repair 

stations. A 2011 antidrug and alcohol 

misuse prevention rule for domestic 

repair stations analyzed the effect on 

domestic repair stations that were small 

entities and subcontractors those 

entities used. That rule based the 

regulatory flexibility determination 

analysis on a Transportation Security 

Administration (TSA) study that used 

Dun & Bradstreet data to estimate the 

share of domestic repair stations that 

would be considered small entities.44

The findings show that 93.28% of 

domestic repair stations would be 

classified as small entities. 

Extrapolating this estimate to the 977 

foreign repair stations used in the 

analysis of this rulemaking results in 

912 foreign repair stations that could be 

considered small entities.45 The FAA 

seeks comment and requests data on 

how this rulemaking will affect part 145 

foreign repair stations. 

1.5 Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements 

Based on the total nominal cost of the 

rule to repair stations, $126.5 million, 

the cost per repair station is $129,473.46

Multiplying the cost per repair station 

by the estimated 912 repair stations that 

are small entities results in a total cost 

to small entities of $118.1 million over 

five years. Table 3 shows the estimated 

annualized compliance costs by 

category. 

TABLE 3—AVERAGE COST OF COMPLIANCE AND SMALL ENTITIES

Category 

Number 

of small 

entities 

Average 

annualized 

cost per 

repair 

station 

Program and Training Development & Maintenance Cost ..................................................................................... 912 $444.69 

Training .................................................................................................................................................................... 912 3,689.98 

Testing Cost ............................................................................................................................................................. 912 6,366.88 

Paperwork ................................................................................................................................................................ 912 10,624.49 

1Based on a baseline of existing practices and using a 7% discount rate. 

1.6 Significant Alternatives 

Considered 

Alternative 1—the Status Quo—The 

status quo represents a situation in 

which the FAA would not propose to 

require part 145 foreign repair stations 

to test their safety-sensitive 

maintenance personnel for drugs and 

alcohol. This alternative is counter to 

Congressional direction and, therefore, 

rejected. 

Alternative 2—The FAA would work 

through the International Civil Aviation 

Organization (ICAO) to create an 

international standard for drug and 

alcohol testing of maintenance 

personnel at repair stations. While the 

FAA is willing to work with ICAO, 49 

U.S.C. 44733(d)(2) requires the FAA to 

expeditiously proceed with this 

rulemaking. In other words, Congress 

directed the FAA to establish a program 

acceptable to the Administrator; 

working through ICAO to create an 

international standard may not 

expeditiously meet this intention given 


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47Based on the previous PRA, the FAA assumes 

16 hours in the first year to establish the testing 

program and one hour to register with the FAA’s 

Drug Abatement Division. Therefore, 17 hours are 

required for the first year. For each year after, the 

recurring time to update and maintain the testing 

list will be 16 hours. The average over five years 

results in the 16.2 hours per year. 

48Office and Administrative Support Workers, 

All Other (SOC 43–9119) NAICS 481000—Air 

Transportation, May 2020; Mean Hourly wage 

https://www.bls.gov/oes/2020/may/oes439199.htm: 

Includes Fringe Benefits. 

the time, resources, and scope of the 

adoption of an international standard. 

C. International Trade Impact 

Assessment 

The Trade Agreements Act of 1979 

(Pub. L. 96–39), as amended by the 

Uruguay Round Agreements Act (Pub. 

L. 103–465), prohibits Federal agencies 

from establishing standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the U.S. Pursuant to these 

Acts, the establishment of standards is 

not considered an unnecessary obstacle 

to the foreign commerce of the U.S., so 

long as the standard has a legitimate 

domestic objective, such as the 

protection of safety, and does not 

operate in a manner that excludes 

imports that meet this objective. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. This rulemaking is 

congressionally mandated. The FAA 

assessed the potential effect of this 

proposed rule and determined that it 

ensures the safety of the American 

public while noting some countries and 

foreign trade associations, in their 

comments, voiced their opposition to an 

FAA drug and alcohol testing standard 

for foreign repair stations. In comments 

to the ANPRM, as discussed in section 

III.B.2. of this preamble, these countries 

cited failure of the legislation to 

recognize each nation’s sovereignty and 

cited that the International Civil 

Aviation Organization (ICAO) would be 

the appropriate vehicle to set worldwide 

standards. As a result, this rulemaking 

could create an obstacle or retaliation to 

foreign commerce. The FAA invites 

comments on this issue. 

D. Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of $100 million or more (in 

1995 dollars) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed to be a ‘‘significant 

regulatory action.’’ The FAA currently 

uses an inflation-adjusted value of 

$177.0 million in lieu of $100 million. 

This proposed rule does not contain 

such a mandate; therefore, the 

requirements of title II of the Act do not 

apply. 

E. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that the 

FAA consider the impact of paperwork 

and other information collection 

burdens imposed on the public. 

According to the 1995 amendments to 

the Paperwork Reduction Act (5 CFR 

1320.8(b)(2)(vi)), an agency may not 

collect or sponsor the collection of 

information, nor may it impose an 

information collection requirement 

unless it displays a currently valid 

Office of Management and Budget 

(OMB) control number. 

This action contains the following 

amendments to the existing information 

collection requirements previously 

approved under OMB Control Number 

2120–0535. As required by the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3507(d)), the FAA has submitted 

these proposed information collection 

amendments to OMB for its review. 

Summary: Under §§ 120.1, 120.123 

and 120.227, the proposed rule would 

extend the drug and alcohol testing 

regulations beyond the territory of the 

U.S. The proposal would require all 

employees of part 145 repair stations 

located outside of the U.S. who perform 

maintenance on part 121 air carrier 

aircraft to be subject to a drug and 

alcohol testing program. Of the 

approximately 977 part 145 repair 

stations located throughout 66 foreign 

countries, it is likely that all of these 

repair stations would continue to 

perform maintenance on part 121 air 

carrier aircraft. If the repair stations 

continue to perform maintenance for 

part 121 air carrier aircraft, each repair 

station would be required to obtain an 

Antidrug and Alcohol Misuse 

Prevention Program Operations 

Specification. In addition, each repair 

station located outside the territory of 

the U.S. would be required to provide 

drug and alcohol testing program 

management information system (MIS) 

data. 

Use: The information would be used 

by the part 145 repair station located 

outside of the territory of the U.S. to 

certify implementation and 

maintenance of a drug and alcohol 

testing program. The FAA’s Drug 

Abatement Compliance and 

Enforcement Inspectors would use this 

information to identify those foreign 

repair stations with an active program 

for inspection scheduling. Inspections 

are used to verify compliance with the 

drug and alcohol testing regulations and 

requirements. In addition, the Drug 

Abatement Division would use the 

annual MIS data reported to calculate 

the annual random drug and alcohol 

testing rates in the aviation industry. 

Respondents (including number of): 

There are currently 977 part 145 

certificated repair stations located 

outside the territory of the U.S. 

Frequency: Part 145 repair stations 

located outside the territory of the U.S. 

would provide information for program 

certification only once; however, these 

repair stations would also incur annual 

program maintenance: e.g., updates to 

the programs per new guidance; the 

random pool list; and the overall testing 

process. The aggregate annual testing 

data would be provided electronically 

through the Department of 

Transportation’s Drug and Alcohol 

Management Information System. 

Annual Burden Estimate 

1. Burden for Program Certification and 

Annual Program Maintenance 

Documentation Number of 

repair stations 

Hours per 

repair station Hourly wage Total cost 

Antidrug and Alcohol Misuse Prevention Program Operations Specification 977 47 16.2 48 $26.90 $425,757 


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49Estimated number of records from 2018 to 

2022. 

50Average yearly cost is calculated by dividing 

total cost by five years. 

51 Information and Records Clerks (SOC 43–4000) 

NAICS 481000—Air Transportation, May 2020: 

Mean Hourly Wage https://www.bls.gov/oes/2020/ 

may/naics3_481000.htm#43-0000: Includes Fringe 

Benefits. 

52 31,842*2 = 63,684. 

53 191,047 + 191,047 + 63,684 = 445,778. 

54 7,642 + 1,274 + 31,842 = 40,758. 

55 40,758 + 8,916 = 49,674. 

56 445,778 + 49,674 + 51,662 + 53,729 + 55,877 

= 656,720. 

57This is broken down by category as 32,452 preemployment drug tests, 210,932 random drug tests, 

4,137 post-accident, reasonable cause, return to 

duty, and follow-up tests. 

58This is broken down by category as 84,373 

random drug tests and 3,460 post-accident, 

reasonable cause, return to duty, and follow-up 

tests. 

2. Burden for Annual Test Data 

Documentation 49Total 

records 

Time per 

record 

(hours) 

Hourly wage Total cost Average yearly 

cost 50

Training records ................................................................... 656,720 0.25 51 $34.47 $5,659,285 $1,131,857 

Records related to the alcohol and drug collection process, test results, refusal to test, employee dispute 

records, SAP reports, follow-up tests .............................. 335,354 5.0 34.47 57,798,262 11,559,652 

Total .............................................................................. 992,074 N/A N/A 63,457,547 12,691,509 

To calculate the number of drug and 

alcohol training records, the FAA took 

the 2021 data showing 147,194 

mechanics and 29,439 supervisors and 

accounted for a four percent growth rate 

over five years. Accounting for these 

rates results in an initial first year total 

of 159,205 mechanics and 31,842 

supervisors. This is a total of 191,047 

employees. In the first year all 

mechanics and supervisors will take 

anti-drug and alcohol training. These 

are two separate trainings. This results 

in 191,047 records for anti-drug training 

and 191,047 for alcohol training. In 

addition, supervisors will have to take 

an additional supervisor reasonable 

cause/reasonable suspicion 

determinations training for drugs and 

alcohol. This adds another 63,684 

records since they are two separate 

trainings as well.52 Therefore, in the 

first year, there will be a total of 445,778 

records.53

For year two and beyond, for drug 

records, the total records reflect the 

increase in new mechanics and 

supervisors which will be required to 

take the drug training. Using the growth 

rate this results in 6,368 mechanics and 

1,274 supervisors for a total of 7,642 

records. The 1,274 new supervisors will 

also have to take the reasonable cause/ 

reasonable suspicion determinations for 

drugs training. In addition, there is 

recurrent reasonable cause/reasonable 

suspicion determinations for drugs 

training that all supervisors will have to 

take every 12 to 18 months. In year two, 

this results in 31,842 supervisors taking 

the recurring trainings. Thus, the 

records for drug training in year two is 

40,758.54 In addition, new mechanics 

and supervisors will be required to take 

alcohol training and supervisors will 

have to take the reasonable cause/ 

reasonable suspicion determinations for 

alcohol training. This adds another 

8,916 records. There is no recurrent 

alcohol training for supervisors. 

Therefore, in year two the total records 

are 49,674.55

The same calculation for year two is 

repeated for years three through five. 

There are 51,662 records in year three, 

53,729 in year four, and 55,877 in year 

five. This results in a total of 656,720 

total training records over the five 

years.56

To calculate the number of records 

related to alcohol and drug collection, 

the FAA sums the number of preemployment drug tests, random drug 

and alcohol tests, and post-accident, 

reasonable cause, return to duty, and 

follow-up drug and alcohol tests per 

year beginning in year two. First, for 

drug testing, every new employee 

performing maintenance will be 

required to take a pre-employment drug 

test but not an alcohol test. Second, the 

FAA estimates 25 percent of current 

employees performing maintenance will 

be randomly drug tested per year. Third, 

there will be post-accident, reasonable 

cause, return to duty, or follow-up 

testing. The FAA estimates 1.70 percent 

of employees tested in a given year will 

be tested again under this category. The 

total drug tests over the five years is 

247,521.57

For alcohol testing, no preemployment alcohol testing is required. 

The other two categories of alcohol 

testing will be the same as for drug 

testing. However, the FAA estimates 

random drug testing will occur at a rate 

of 10 percent of current employees and 

4.10 percent for post-accident, 

reasonable cause, return to duty, and 

follow-up tests. The total alcohol tests 

over the five years is 87,833.58 Taking 

the sum of drug and alcohol tests results 

in 335,354 records related to alcohol 

and drug collection. 

The agency is soliciting comments 

to— 

(1) Evaluate whether the proposed 

information requirement is necessary for 

the proper performance of the functions 

of the agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of collecting 

information on those who are to 

respond, including by using appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology. 

Individuals and organizations may 

send comments on the information 

collection requirement to the address 

listed in the ADDRESSES section at the 

beginning of this preamble by February 

5, 2024. Comments also should be 

submitted to the Office of Management 

and Budget, Office of Information and 

Regulatory Affairs, Attention: Desk 

Officer for FAA, New Executive Office 

Building, Room 10202, 725 17th Street 

NW, Washington, DC 20053. 

F. International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

conform to International Civil Aviation 

Organization (ICAO) Standards and 

Recommended Practices to the 

maximum extent practicable. The FAA 

has determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these proposed 

regulations. 

G. Environmental Analysis 

FAA Order 1050.1F identifies FAA 

actions that are categorically excluded 


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from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this 

rulemaking action qualifies for the 

categorical exclusion identified in 

paragraph 5–6.6f for regulations and 

involves no extraordinary 

circumstances. 

VI. Executive Order Determinations 

A. Executive Order 13132, Federalism 

The FAA has analyzed this proposed 

rule under the principles and criteria of 

Executive Order 13132, Federalism. The 

agency has determined that this action 

would not have a substantial direct 

effect on the States, or the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, and, 

therefore, would not have federalism 

implications. 

B. Executive Order 13211, Regulations 

that Significantly Affect Energy Supply, 

Distribution, or Use 

The FAA analyzed this proposed rule 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use. The agency has 

determined that it would not be a 

‘‘significant energy action’’ under the 

Executive order and would not be likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. 

C. Executive Order 13609, Promoting 

International Regulatory Cooperation 

Executive Order 13609, Promoting 

International Regulatory Cooperation, 

promotes international regulatory 

cooperation to meet shared challenges 

involving health, safety, labor, security, 

environmental, and other issues and to 

reduce, eliminate, or prevent 

unnecessary differences in regulatory 

requirements. The FAA has analyzed 

this action under the policies and 

agency responsibilities of Executive 

Order 13609 and has determined that 

this action could create differences in 

international regulatory requirements. 

The FAA acknowledges that the FAA 

may need to revisit certain international 

agreements, as discussed in section IV.D 

and invites comments on this issue. 

VII. Additional Information 

A. Comments Invited 

The FAA invites interested persons to 

participate in this rulemaking by 

submitting written comments, data, or 

views. The FAA also invites comments 

relating to the economic, environmental, 

energy, or federalism impacts that might 

result from adopting the proposals in 

this document. The most helpful 

comments reference a specific portion of 

the proposal, explain the reason for any 

recommended change, and include 

supporting data. To ensure the docket 

does not contain duplicate comments, 

commenters should submit only one 

time if comments are filed electronically 

or commenters should send only one 

copy of written comments if comments 

are filed in writing. 

The FAA will file in the docket all 

comments it receives, as well as a report 

summarizing each substantive public 

contact with FAA personnel concerning 

this proposed rulemaking. Before acting 

on this proposal, the FAA will consider 

all comments it receives on or before the 

closing date for comments. The FAA 

will consider comments filed after the 

comment period has closed if it is 

possible to do so without incurring 

expense or delay. The FAA may change 

this proposal in light of the comments 

it receives. 

Privacy: In accordance with 5 U.S.C. 

553(c), DOT solicits comments from the 

public to better inform its rulemaking 

process. DOT posts these comments, 

without edit, including any personal 

information the commenter provides, to 

https://www.regulations.gov, as 

described in the system of records 

notice (DOT/ALL–14 FDMS), which can 

be reviewed at https://www.dot.gov/ 

privacy. 

B. Confidential Business Information 

Confidential Business Information 

(CBI) is commercial or financial 

information that is both customarily and 

actually treated as private by its owner. 

Under the Freedom of Information Act 

(FOIA) (5 U.S.C. 552), CBI is exempt 

from public disclosure. If your 

comments responsive to this NPRM 

contain commercial or financial 

information that is customarily treated 

as private, that you actually treat as 

private, and that is relevant or 

responsive to this NPRM, it is important 

that you clearly designate the submitted 

comments as CBI. Please mark each 

page of your submission containing CBI 

as ‘‘PROPIN.’’ The FAA will treat such 

marked submissions as confidential 

under the FOIA, and they will not be 

placed in the public docket of this 

NPRM. Submissions containing CBI 

should be sent to the person in the FOR

FURTHER INFORMATION CONTACT section of 

this document. Any commentary that 

the FAA receives which is not 

specifically designated as CBI will be 

placed in the public docket for this 

rulemaking. 

C. Electronic Access and Filing 

A copy of this NPRM, all comments 

received, any final rule, and all 

background material may be viewed 

online at https://www.regulations.gov 

using the docket number listed above. A 

copy of this proposed rule will be 

placed in the docket. Electronic retrieval 

help and guidelines are available on the 

website. It is available 24 hours each 

day, 365 days each year. An electronic 

copy of this document may also be 

downloaded from the Office of the 

Federal Register’s website at https://

www.federalregister.gov and the 

Government Publishing Office’s website 

at https://www.govinfo.gov. A copy may 

also be found at the FAA’s Regulations 

and Policies website at https://

www.faa.gov/regulations_policies. 

Copies may also be obtained by 

sending a request to the Federal 

Aviation Administration, Office of 

Rulemaking, ARM–1, 800 Independence 

Avenue SW, Washington, DC 20591, or 

by calling (202) 267–9677. Commenters 

must identify the docket or notice 

number of this rulemaking. 

All documents the FAA considered in 

developing this proposed rule, 

including economic analyses and 

technical reports, may be accessed in 

the electronic docket for this 

rulemaking. 

List of Subjects in 14 CFR Part 120 

Alcoholism, Air carriers, Alcohol 

abuse, Alcohol testing, Aviation safety, 

Drug abuse, Drug testing, Operators, 

reporting and recordkeeping 

requirements, Safety, Safety-sensitive, 

Transportation. 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend chapter I of title 14, 

Code of Federal Regulations as follows: 

PART 120—DRUG AND ALCOHOL 

TESTING PROGRAM 

■ 1. The authority citation for part 120 

is revised to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g), 40101– 

40103, 40113, 40120, 41706, 41721, 44106, 

44701, 44702, 44703, 44709, 44710, 44711, 

44733, 45101–45105, 46105, 46306. 

■ 2. Amend § 120.1 by: 

■ a. Revising paragraph (c); 

■ b. Redesignating paragraph (d) as 

paragraph (e); 

■ c. Adding new paragraph (d). 

The revision and addition read as 

follows: 


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§ 120.1 Applicability. 

* * * * * 

(c) All part 145 certificate holders 

located in the territory of the United 

States who perform safety-sensitive 

functions and elect to implement a drug 

and alcohol testing program under this 

part. 

(d) All part 145 certificate holders 

outside the territory of the United States 

who perform safety-sensitive 

maintenance functions on part 121 air 

carrier aircraft. 

■ 3. Revise § 120.5 to read as follows: 

§ 120.5 Procedures. 

Each employer having a drug and 

alcohol testing program under this part 

must ensure that all drug and alcohol 

testing conducted pursuant to this part 

complies with the procedures set forth 

in 49 CFR part 40 and any exemptions 

issued to that employer by the 

Department of Transportation in 

accordance with 49 CFR 40.7. 

■ 4. Add § 120.9 to read as follows: 

§ 120.9 Waivers for Part 145 Repair 

Stations Outside the Territory of the United 

States. 

(a) A part 145 repair station whose 

employees perform safety-sensitive 

maintenance functions on part 121 air 

carrier aircraft outside the territory of 

the United States may request a waiver 

from the Administrator from any 

requirements under 14 CFR part 120, 

subpart E or F, if specific requirements 

of the subpart are inconsistent with the 

laws of the country where the repair 

station is located. 

(b) Each waiver request must include, 

at a minimum, the following elements: 

(1) Information about your 

organization, including your name and 

mailing address and, if you wish, other 

contact information such as a fax 

number, telephone number, or email 

address; 

(2) The specific section or sections of 

this part from which you seek a waiver; 

(3) The reasons why granting the 

waiver would not adversely affect the 

prevention of accidents and injuries 

resulting from the use of prohibited 

drugs or the misuse of alcohol by 

employees; 

(4) A copy of the law that is 

inconsistent with the provision(s) of this 

part from which a waiver is sought; 

(5) An explanation of how the law is 

inconsistent with the provision(s) of this 

part from which a waiver is sought, and; 

(6) A description of the alternative 

means that will be used to achieve the 

objectives of the provision that is the 

subject of the waiver or, if applicable, a 

justification of why it would be 

impossible to achieve the objectives of 

the provision in any way. 

(c) Each petition for a waiver must be 

submitted to the Federal Aviation 

Administration, Office of Aerospace 

Medicine, Drug Abatement Division 

(AAM–800), 800 Independence Avenue 

SW, Washington, DC 20591. 

■ 5. Amend § 120.117 by: 

■ a. Revising paragraph (a)(5); 

■ b. Redesignating paragraph (a)(6) as 

paragraph (a)(7); 

■ c. Adding new paragraph (a)(6); 

■ d. Revising paragraph (c); 

The revisions and additions read as 

follows: 

§ 120.117 Implementing a drug testing 

program. 

(a) * * * 

If you are . . . You must . . . 

*******

(5) A part 145 certificate holder located inside the territory of the United 

States who has your own drug testing program.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector or register with the FAA, Office of Aerospace Medicine, Drug 

Abatement Division (AAM–800), 800 Independence Avenue SW, 

Washington, DC 20591, if you opt to conduct your own drug testing 

program. 

(6) A part 145 repair station located outside the territory of the United 

States whose employees perform safety-sensitive maintenance functions on part 121 air carrier aircraft.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. 

* * * * * * * 

* * * * * 

(c) If you are an individual or 

company that intends to provide safetysensitive services by contract to a part 

119 certificate holder with authority to 

operate under part 121 and/or part 135 

of this chapter, an operation as defined 

in § 91.147 of this chapter, or an air 

traffic control facility not operated by 

the FAA or by or under contract to the 

U.S. military, use the following chart to 

determine what you must do if you opt 

to have your own drug testing program. 

If you are . . . You must . . . 

(1) A part 145 certificate holder located inside the territory of the United 

States and opt to conduct your own program under this part.

(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specification or register with the FAA, Office of Aerospace 

Medicine, Drug Abatement Division (AAM–800), 800 Independence 

Avenue SW, Washington, DC 20591, 

(ii) Implement an FAA drug testing program no later than the date you 

start performing safety-sensitive functions for a part 119 certificate 

holder with authority to operate under parts 121 or 135, or operator 

as defined in § 91.147 of this chapter, and 

(iii) Meet the requirements of this subpart as if you were an employer. 


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If you are . . . You must . . . 

(2) A part 145 repair station located outside the territory of the United 

States whose employees perform maintenance functions on part 121 

air carrier aircraft.

(i) Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. 

(ii) Implement a drug testing program acceptable to the Administrator 

no later than one year from [EFFECTIVE DATE OF REGULATION], 

or if company operations begin more than one year after [EFFECTIVE DATE OF REGULATION], implement a drug testing program 

acceptable to the Administrator no later than the date you start operations, and 

(iii) Meet the requirements of this subpart in a manner acceptable to 

the Administrator. 

(3) A contractor who opts to implement a testing program under this 

part.

(i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, 

(ii) Implement an FAA drug testing program no later than the date you 

start performing safety-sensitive functions for a part 119 certificate 

holder with authority to operate under parts 121 or 135, or operator 

as defined in § 91.147 of this chapter, or an air traffic control facility 

not operated by the FAA or by or under contract to the U.S. Military, 

and 

(iii) Meet the requirements of this subpart as if you were an employer. 

* * * * * 

■ 6. Amend § 120.123 by revising 

paragraphs (a) introductory text, (a)(1), 

and (b) to read as follows: 

§ 120.123 Drug testing outside the territory 

of the United States. 

(a) Except for those testing processes 

applicable to persons testing pursuant to 

§ 120.1(d), no part of the testing process 

(including specimen collection, 

laboratory processing, and MRO actions) 

shall be conducted outside the territory 

of the United States. 

(1) Except for those persons testing 

pursuant to § 120.1(d), each employee 

who is assigned to perform safetysensitive functions solely outside the 

territory of the United States shall be 

removed from the random testing pool 

upon the inception of such assignment. 

* * * * * 

(b) Except for those persons testing 

pursuant to § 120.1(d), the provisions of 

this subpart shall not apply to any 

individual who performs a function 

listed in § 120.105 by contract for an 

employer outside the territory of the 

United States. 

■ 7. Amend § 120.225 by: 

■ a. Revising paragraph (a)(5); 

■ b. Redesignating paragraph (a)(6) as 

paragraph (a)(7); 

■ c. Adding new paragraph (a)(6); 

■ d. Revising paragraph (c); and 

■ e. Revising paragraphs (d) 

introductory text and (d)(1). 

The revisions and addition read as 

follows: 

§ 120.225 How to implement an alcohol 

testing program. 

(a) * * * 

If you are . . . You must . . . 

*******

(5) A part 145 certificate holder located inside the territory of the United 

States who has your own alcohol testing program.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector or register with the FAA Office of Aerospace Medicine, Drug 

Abatement Division (AAM–800), 800 Independence Avenue SW., 

Washington, DC 20591, if you opt to conduct your own alcohol testing program. 

(6) A part 145 repair station located outside the territory of the United 

States who performs safety-sensitive maintenance functions on part 

121 air carrier aircraft.

Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. 

* * * * * * * 

* * * * * 

(c) If you are an individual or 

company that intends to provide safetysensitive services by contract to a part 

119 certificate holder with authority to 

operate under part 121 and/or part 135 

of this chapter, or an operator as defined 

in § 91.147 of this chapter, use the 

following chart to determine what you 

must do if you opt to have your own 

drug testing program. 

If you are . . . You must . . . 

(1) A part 145 certificate holder located inside the territory of the United 

States and opt to conduct your own program under this part.

(i) Have an Antidrug and Alcohol Misuse Prevention Program Operations Specifications or register with the FAA, Office of Aerospace 

Medicine, Drug Abatement Division (AAM–800), 800 Independence 

Avenue SW, Washington, DC 20591, 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Proposed Rules 85155 

If you are . . . You must . . . 

(ii) Implement an FAA alcohol testing program no later than the date 

you start performing safety-sensitive functions for a part 119 certificate holder with the authority to operate under parts 121 and/or 135, 

or operator as defined in § 91.147 of this chapter, and 

(iii) Meet the requirements of this subpart as if you were an employer. 

(2) Are a part 145 repair station located outside of the territory of the 

United States who performs maintenance functions on part 121 air 

carrier aircraft.

(i) Obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification by contacting your Principal Maintenance Inspector. 

(ii) Implement an alcohol testing program acceptable the Administrator 

no later than one year from [EFFECTIVE DATE OF REGULATION], 

or if company operations begin more than one year after [EFFECTIVE DATE OF REGULATION], implement an alcohol testing program acceptable to the Administrator no later than the date you start 

operations, and 

(iii) Meet the requirements of this subpart in a manner acceptable to 

the Administrator. 

(3) A contractor ......................................................................................... (i) Register with the FAA, Office of Aerospace Medicine, Drug Abatement Division (AAM–800), 800 Independence Avenue SW, Washington, DC 20591, 

(ii) Implement an FAA drug testing program no later than the date you 

start performing safety-sensitive functions for a part 119 certificate 

holder with authority to operate under parts 121 or 135, or operator 

as defined in § 91.147 of this chapter, or an air traffic control facility 

not operated by the FAA or by or under contract to the U.S. Military, 

and 

(iii) Meet the requirements of this subpart as if you were an employer. 

(d) To obtain an antidrug and alcohol 

misuse prevention program operations 

specification: 

(1) You must contact your FAA 

Principal Operations Inspector or 

Principal Maintenance Inspector. 

Provide him/her with the following 

information: 

* * * * * 

■ 8. Amend § 120.227 by revising 

paragraphs (a) introductory text, (a)(1), 

and (b) to read as follows: 

§ 120.227 Employees located outside the 

U.S. 

(a) Except for those persons testing 

pursuant to § 120.1(d), no covered 

employee shall be tested for alcohol 

misuse while located outside the 

territory of the United States. 

(1) Except for those persons testing 

pursuant to § 120.1(d), each covered 

employee who is assigned to perform 

safety-sensitive functions solely outside 

the territory of the United States shall be 

removed from the random testing pool 

upon the inception of such assignment. 

* * * * * 

(b) Except for those persons testing 

pursuant to § 120.1(d), the provisions of 

this subpart shall not apply to any 

person who performs a safety-sensitive 

function by contract for an employer 

outside the territory of the United 

States. 

Issued in Washington, DC. 

Susan E. Northrup, 

Federal Air Surgeon. 

[FR Doc. 2023–26394 Filed 12–6–23; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Part 334 

[COE–2023–0010] 

Danger Zone; Marine Corps Base 

Hawaii, Kaneohe Bay, Island of Oahu, 

Hawaii 

AGENCY: U.S. Army Corps of Engineers, 

DoD. 

ACTION: Notice of proposed rulemaking 

and request for comments. 

SUMMARY: The U.S. Army Corps of 

Engineers is proposing to amend the 

regulations for the existing danger zone 

at the U.S. Marine Corps Ulupau Crater 

Weapons Training Range in the vicinity 

of Kaneohe Bay, Hawaii. The U.S. 

Marine Corps requested a change to the 

hours that weapons firing may occur. 

These regulations are necessary to 

protect the public from potentially 

hazardous conditions which may exist 

as a result from use of the areas by the 

U.S. Marine Corps. 

DATES: Written comments must be 

submitted on or before January 8, 2024. 

ADDRESSES: You may submit comments, 

identified by docket number COE– 

2023–0010, by any of the following 

methods: 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the 

instructions for submitting comments. 

Email: david.b.olson@usace.army.mil. 

Include the docket number, COE–2023– 

0010, in the subject line of the message. 

Mail: U.S. Army Corps of Engineers, 

Attn: CECW–CO–R (David B. Olson), 

441 G Street NW, Washington, DC 

20314–1000. 

Hand Delivery/Courier: Due to 

security requirements, we cannot 

receive comments by hand delivery or 

courier. 

Instructions: Direct your comments to 

docket number COE–2023–0010. All 

comments received will be included in 

the public docket without change and 

may be made available on-line at 

https://www.regulations.gov, including 

any personal information provided, 

unless the commenter indicates that the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI, or otherwise 

protected, through regulations.gov or 

email. The regulations.gov website is an 

anonymous access system, which means 

we will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an email directly to the Corps 

without going through regulations.gov, 

your email address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

internet. If you submit an electronic 

comment, we recommend that you 

include your name and other contact 

information with your comment. If we 


ddrumheller on DSK120RN23PROD with PROPOSALS1